Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
Good afternoon, my Lords, and welcome to the Grand Committee. We are not expecting Divisions this afternoon, but if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Packaging Waste (Data Reporting) (England) (Amendment) Regulations 2023
(11 months, 1 week ago)
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Lord Benyon
That the Grand Committee do consider the Packaging Waste (Data Reporting) (England) (Amendment) Regulations 2023.
Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, these regulations were laid before this House on 20 April. The date of laying is the same as in the Commons.
These regulations amend the Packaging Waste (Data Reporting) (England) Regulations 2023. Since those regulations came into force, further engagement with stakeholders has brought to our attention two key issues, which these amendments seek to resolve. Along with these, we have taken the opportunity to pursue additional amendments that improve the clarity of provisions.
Let me turn now to the details of this instrument. These regulations introduce two key changes, but I can assure noble Lords that the changes being introduced are not a change of policy. First, this SI adds to the obligations of importers of packaged products or unfilled packaging. Erroneously omitted from the original statutory instrument, importers will need to report packaging which they import and subsequently dispose of without supplying onwards. It was always our intention to include this packaging in the regulations and, indeed, it is data which importers already collect and report under the current packaging producer responsibility scheme. We estimate that the amount of packaging this relates to is approximately 1 million tonnes, or about 8% of the total amount of packaging placed on the market each year in the United Kingdom. If this packaging were to go unreported, it would seriously hamper the proper functioning of the packaging recovery note system and would also lead to a distortion of the producer fees that will be payable under packaging extended producer responsibility.
Secondly, this amending statutory instrument makes changes that remove uncertainty around the definition of a brand owner. These amendments address two main scenarios, the first being where there is more than one brand name printed on the packaging—for example, a limited-edition chocolate Easter egg made by one brand that contains a toy made by a different brand. The amendments make it clear that it is the brand that first sells the packaged product that is responsible, which in this instance is the brand owner of the Easter egg, not the brand owner of the toy. The second brand scenario is where a single sales unit groups together multiple items from different brands. An example of this would be the Sunday Times wine box. The amendments make it clear that the brand which brings a number of other products together into a single product should be responsible only for the packaging it adds. In this example, the Sunday Times would be obligated for the carboard box, and the wine producers would be obligated for their wine bottles.
In addition to the two key areas I have discussed, the regulations also make several other changes, and I will now briefly discuss them. The amendments provide further clarification on the data reporting requirements for reusable and refillable packaging and simplify the reporting. As drafted, the regulations require producers to report if their reusable packaging was refilled at home or in-store. The amendments remove the need to describe the type of reusable system, which will reduce the data-gathering and therefore burdens on those producers.
However, key data will continue to be reported to inform policy development ahead of introducing new measures to increase the uptake of reuse and refill systems in 2025. This data is the amount of reusable packaging a producer has supplied and whether it is primary packaging. Primary packaging is the packaging which surrounds a product and forms a sales unit to the consumer—for example, a reusable plastic detergent bottle—whereas secondary and tertiary packaging are the items of packaging which businesses interact with and are typically removed before a product is sold to a consumer: for example, carboard boxes used for display purposes or pallets used in the distribution of products.
The changes will also allow producers that have instituted reuse systems to obtain a discount on their extended producer responsibility disposal cost fees where they have collected this waste packaging and sent it for recycling. The amendments also include minor corrections to the drafting of the data SI and fix some incorrect cross-references.
These amending regulations will apply to England only, but similar regulations are being progressed and amended, where needed, in Wales, Scotland and Northern Ireland. My officials have worked closely with the relevant departments in the devolved Administrations in the development of this legislation.
In conclusion, I emphasise that the measures in these amending regulations are crucial for enabling the effective implementation of extended producer responsibility for packaging and realising its associated environmental benefits. I commend these draft regulations to the Committee.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful to my noble friend for giving us the opportunity to debate these regulations. I generally support them, but I have a couple of queries. One relates to the 38th report from the Secondary Legislation Scrutiny Committee, which refers to a submission from Green Alliance that questions how the offsetting set out in the regulations will work and how Defra will ensure that
“the ability to offset obligations will not create incentives for producers to recycle potentially reusable packaging before it reaches the end of its useful life, to avoid paying producer fees”.
It is important to point out that this is a very complex area of policy that the Government are trying to roll out.
I received a briefing from the Food and Drink Federation earlier this year on its concerns about extended producer responsibility, which forms the crux of these regulations and is explained in the impact assessment and the Explanatory Memorandum. The problem we face—as my noble friend is extremely well aware, having served, as I have, as an MP in the other place—is that every single local authority seems to have a different rule relating to how waste packaging is to be disposed of. There is then the problem of potential contamination, particularly if foodstuffs form part of the waste disposed of.
From the consumer point of view, it is a bit depressing to learn that, although hundreds of local councils collect household waste, each has different rules as to how it can be recycled, which bin to put it in and what consumers should do with their waste. Then they find that much of it is not recycled at all; it is incinerated. Years ago, when my noble friend and I served as shadow Ministers in the other place, I went on a visit to SELCHP—South East London Combined Heat and Power—which now is combined heat and power but at the time was not. It burned everything, but it did not do anything with the energy it could have recovered from the process. It was interesting to see that all the waste from Westminster at that time was not recycled; it was just burned.
The Food and Drink Federation has raised some very real questions, which I ask my noble friend to comment on in the context of extended producer responsibility. First, should we not have basic principles agreed at the outset by all concerned? That would include the producers of the packaging, the manufacturers of a product, the Government and the local authorities which are looking to recycle. Secondly, it asks: how should an extended producer responsibility be framed as it relates to local government, including the financing
“of potential stranded assets and management of existing local government contracts”?
How could those be managed as part of an agreed transition without hampering the development of what everyone wants to see: a long-term, world-class solution to enable the UK to reduce the cost and disruption of packaging?
Thirdly, the federation calls for “Partnership with industry” to bring about a producer-led extended producer responsibility that harnesses the considerable expertise arising from setting up these schemes all over the world. This would
“drive innovation and business growth while constraining costs”
that would otherwise
“lead to higher consumer prices”.
The example it gives is that of a biscuit wrapper, in which the flexible plastic used
“is specially designed to guarantee the freshness and quality of the biscuits in it. The companies that use this type of valuable, flexible plastic for biscuits and other food types need it back. But flexible plastics are neither collected nor recycled in the kerbside system today”.
Does my noble friend not agree that in a good end-to-end extended producer responsibility system,
“each biscuit wrapper thrown away should be collected and given a second life as part of a circular system, creating jobs and driving green growth along the way”?
That is my main concern, but the other concern the Food and Drink Federation has raised is the way in which the Government have created their producer-led scheme administrator. It seems to be different in this country from other models that have been used elsewhere. Why have the Government chosen the model that we have for extended producer responsibility?
While I support the regulations before us, there are obviously practical problems with the way they have been drafted. I think my noble friend said that these are amendments to previous regulations, which presumably came before the House as well. I realise that this is a complex area but it would be better, in one sense, to slow the process down and have regulations which are fit for purpose: for the consumer, so we know what we are doing when we dispose of the packaging; for the producer, so they know what they are doing when they create the packaging in the first place, and are held responsible for that packaging; and for the local authorities which collect and dispose of this packaging. I support the amendments but I would welcome my noble friend’s comments in this regard.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for his introductory remarks and welcome this SI, which is intended to reduce the amount of plastic packaging in circulation. This is long overdue and I look forward to seeing a lot less packaging from McDonalds, Kentucky Fried Chicken and other fast-food outlets littering our town centres and rural countryside.
The SI makes provision for the collection of data about plastic packaging ahead of the full implementation of the regulations in 2024. I will read out in full Paragraph 7.1 of the EM, because I will be referring to it later:
“Extended Producer Responsibility … for packaging will require producers to take responsibility for the environmental impact of the packaging they supply by obligating them to pay for the collection and disposal costs of this packaging when it becomes waste. This will provide a financial incentive for producers to reduce the amount of packaging they supply and to improve the recyclability of their packaging”.
Hooray—and not before time.
The regulations, and the need to collect and report the data on the plastic packaging used, apply to those businesses with an annual turnover of £2 million and above. But the de minimis threshold turnover is £1 million, at which level the data has to be collected but not reported. Can the Minister say why this is? What is the purpose of collecting the data if it does not have to be reported?
Defra conducted a consultation with industry on the implementation of these regulations twice: first, from February to May 2019, when there were 679 responses; and secondly, from March to June 2021, when there were 1,241 responses—nearly double that of the earlier consultation. The first consultation was a general one while the second was more detailed and outlined the proposals to require producers to report twice yearly in April and October, covering a six-month period; it could be that that detail is what generated the greater level of response.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I thank the Minister for outlining the amendments to the data reporting regulations, which your Lordships’ House passed in February this year. As it is a sunny Monday afternoon and we are all rather relaxed after the recess, I will not be churlish but will congratulate the Minister and his department for listening to industry and bringing amendments this quickly. His Majesty’s Opposition support this and all measures that actively seek to promote better use of our natural resources and active recycling programmes. The establishment of correct base data is fundamental to the success of the associated schemes. However, I have a few questions for the Minister, which I hope he can assist us with.
While I appreciate that the SI is limited in scope to data collection to ensure that we have accurate facts and figures at hand for the imminent implementation of the extended producer responsibility scheme, there are substantive issues associated with the EPR itself. Can the Minister assist us with an update following news coverage last week that the food industry is seeking delays to the implementation of the extended producer responsibility scheme? Can he assure the Committee that the current timescale for implementation remains in place? Would the Minister also be kind enough to inform your Lordships of his department’s most recent engagement with both the British Retail Consortium and the Food and Drink Federation regarding the details of the scheme, given their public concerns?
Much debate in the other place focused on the potential impact of this new scheme on small businesses, many of which are facing other challenges at present. We appreciate that Defra has carefully considered the turnover and tonnage thresholds, and that the department has been running engagement sessions for producers, but does the Minister have anything new to say on information sharing and implementation dates?
These regulations also add the obligations of importers, which were
“Erroneously omitted from the original statutory instruments”.—[Official Report, Commons, Second Delegated Legislation Committee, 23/5/23; col. 1.]
Given that imported packaging makes up around 8% of that placed on the UK market each year, and that, by the Commons Minister’s own admission, not including this data would “distort the system”, how is it possible that Ministers missed this before now?
Among other things, this SI deals with reusable forms of packaging, such as bottles or containers that may be used to purchase household items at zero-waste shops. The Minister knows that questions have been raised, via the Secondary Legislation Scrutiny Committee, about the potential for offsets to incentivise the early recycling of reusable packaging, so that firms avoid paying producer fees. The department’s response has been published online, but could the Minister read a summary into the record?
These seemingly minor changes to the regulatory framework could have a further inflationary effect on our food prices when the EPR is implemented. Food inflation is running at 19.1%; if food manufacturers opt to pass the full costs of these regulations on to the consumer—a sum the BRC currently speculates to be in the region of £1.7 billion per annum—it will have further inflationary effects. In the middle of a cost of living crisis, it is therefore vital that we get this right.
Lord Benyon (Con)
I thank noble Lords for their valuable contributions to the debate. I turn first to that from my noble friend Lady McIntosh regarding her concerns about offsetting for widely recyclable, single-use materials that a producer collects for recycling. The packaging extended producer responsibility scheme will not allow for this material to be used to offset disposal costs, because it could risk duplicating existing collection systems, which would reduce overall system efficiency. In doing so, this would shift costs on to other producers.
On my noble friend’s wider concerns about the packaging EPR, we have listened to feedback from the industry very carefully and have amended our proposals following consultation. This has reduced the cost to businesses from an estimated £2.7 billion to £1.4 billion per annum. That addresses some of the wider concerns expressed about the impact this could have, and the last point made by the noble Baroness, Lady Anderson, about any inflationary effect, which I will address later.
We are committed to continuing to work closely with industry on the final design of the scheme and our delivery plans. Defra has set up a business readiness forum and a local authority forum in order to keep businesses, producers and local authorities up to date about changes. These groups have been meeting regularly since January this year.
The noble Baroness, Lady Bakewell, raised the issue of a de minimis. The collection and reporting of data by smaller producers is done to inform a review of whether the de minimis should be reduced in future years. She is absolutely right that this will need to be revisited by another statutory instrument next year as we see these systems bed in.
On the question raised by my noble friend Lady McIntosh about whether this is the right time and whether there should be a delay, I note that as part of the transition between the old and the new regulations, producers and compliance schemes may need to continue to comply with their 2023 obligations in respect of packaging placed on the UK market in 2022, which are determined by the 2007 regulations. It is planned that the data reporting regulations and the 2007 regulations will be revoked by the new Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2023, which are expected to come into force towards the end of this year. The regulators will keep producers informed about compliance requirements as part of the transition from the 2007 to the 2023 regulations.
I really do recognise the concerns about the timing of this, but it is vital that we do not delay the scheme. We are working on implementing the packaging extended producer responsibility from 2024. In doing so, we are continuing to engage with stakeholders to ensure that the burdens of transitioning to this new scheme are minimised.
Local authorities will be able to collect dry recyclable waste streams together in circumstances where it is not technically or economically practicable to collect the waste streams separately, or there is no significant environmental benefit to doing so. Shortly, we will publish the government response to our consultation of last year, which will also confirm any exemptions to separate collection whereby local authorities can co-mingle recyclable waste streams in all circumstances. It is important to set this scheme in relation to other factors.
On whether this impact will feed through to household bills, we have to recognise that there is a huge cost to the taxpayer in the environmental impact of not recycling. The only way we can encourage more recycling is to know precisely what companies are doing, how they are using it and therefore how we can incentivise them to change behaviour. Huge benefits have been achieved by companies that have addressed this in what they do and made a virtue of it. We want to support them in this.
An important point was raised by the noble Baroness, Lady Bakewell, regarding Wiltshire Farm Foods and apetito. As she says, they do wonderful work in providing food for sometimes vulnerable people, and they recycle their trays in a closed-loop system. Producers will not be permitted to off-set their fees where the packaging in question is collected for recycling by more than 75% of local authorities. The key reason for this is that we do not want to incentivise producers to start collecting their own household packaging for recycling where that packaging is widely collected by local authorities. We want significantly to increase kerbside recycling through consistency and extended producer responsibility, and to do so in the most efficient and effective way. Potentially competing arrangements are unlikely to achieve this.
We also want to encourage producers to move to reusable packaging and reduce single-use packaging where possible. That is why we have included an exemption to this rule for any packaging that is being used as part of a reuse system—for example, reusable glass milk bottles.
I will speak to my honourable friend Rebecca Pow to make sure that she follows up on her agreement to have a meeting with Wiltshire Farm Foods or apetito, or both. I am sure that that is in the process of happening and I will make sure that it does.
With those few words, I hope that I have addressed the concerns raised today. I am grateful that noble Lords have indicated their willingness to accept this instrument. It will make crucial changes to the Packaging Waste (Data Reporting) (England) Regulations 2023. These changes will ensure the proper functioning of the packaging recycling evidence scheme and that fair producer fees are set that reflect the true amount of packaging that arises as waste in the UK. These amendments will also clarify the definition of a brand owner, ensuring that producers have confidence in where their obligations lie.
Baroness McIntosh of Pickering (Con)
Before my noble friend sits down, may I just follow up? I am trying to understand what he said in response to the noble Baroness, Lady Bakewell of Hardington Mandeville. If it is a closed-loop system and the waste is not entering the general household collection system, surely, producers should be exempt and be allowed to have their own system. My noble friend seemed to answer the question by saying that if it is general household waste collection, they could not save more than 75%, but, if this is a closed-loop system, should they not be exempt?
My noble friend referred to the EPR regulations which will come into force later this year. Will we be given a similar chance to discuss them, in a similar forum?
Lord Benyon (Con)
On the latter point, I can certainly assure my noble friend that there will be plenty of opportunity to discuss them.
Producers will not be permitted to off-set their fees where the packaging in question is collected for recycling by more than 75% of local authorities. That assesses the type of packaging we are talking about and how it impacts local authorities. Where there is a closed-loop system, we think that is the right measure to take. The key reason for this is that we do not want to incentivise producers to start collecting their own household packaging for recycling where that packaging is largely collected by local authorities. We want significantly to increase the amount of consistent kerbside collections we are conducting and thereby create economies for these products where possible. It is really important that the case raised by the noble Baroness, Lady Bakewell, be brought to the attention of my ministerial colleague and officials so that we can talk through its impacts.
Animal By-Products, Pet Passport and Animal Health (Fees) (England) (Amendment) Regulations 2023
(11 months, 1 week ago)
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Lord Benyon
That the Grand Committee do consider the Animal By-Products, Pet Passport and Animal Health (Fees) (England) (Amendment) Regulations 2023.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, these regulations were laid before the House on 18 April. This instrument seeks to make amendments to the Animal Health (Miscellaneous Fees) (England) Regulations 2018 and the Animal By-Products and Pet Passport Fees (England) Regulations 2018 to ensure that there is no under-recovery or over-recovery of costs. These amendments do not contain any changes to policy or processes, only to the fees that the Animal and Plant Health Agency can collect on behalf of the Secretary of State in relation to statutory animal health services carried out by the agency.
The fees are designed to fund APHA’s front-line statutory animal health services for safeguarding animal health and supporting our domestic and international trade. These are: inspection of consignments and licensing of facilities involved in the trade of livestock semen, eggs and embryos; inspection and licensing of facilities involved in the handling, storage or incineration of animal by-products not destined for human consumption; inspection of live animals arriving from third countries at our border control posts; surveillance of commercial poultry flocks for salmonella; licensing and proficiency testing of private laboratories carrying out salmonella tests under our national salmonella control programme; and registration and approval of premises intending to export breeding poultry, day-old chicks and hatching eggs from Great Britain.
The proposed amendments also include the removal of the fees regime for pet passports, as APHA is no longer involved in the issuance of passports for the movement of pets to and from the UK and other countries. Following public consultation, new fees for these services were last introduced in 2018, with a commitment to businesses that fees would be reviewed biennially to ensure the charges and exemptions were appropriate.
Due to the agency’s focus of effort and resources on EU exit work, Covid and avian influenza, these reviews were put on hold and the fees for these schemes have consequently not been refreshed. As a result, businesses are being charged in a way which does not reflect full cost recovery for APHA. The schemes are failing to achieve recovery of their full costs, with a deficit of between £0.4 million and £0.5 million per year. This shortfall is currently being funded by the public purse.
Following the cost recovery principles of the Managing Public Money guidelines, APHA and Defra finance teams have developed a new fee schedule to deliver full cost recovery. No additional margins or profits have been included, and my counterparts in His Majesty’s Treasury have approved the approach taken.
The average increase to overall scheme fee income to achieve full cost recovery would be 51%. Given the substantive cost increases for some elements within the fee schedules, in designing this instrument we have balanced a proportional approach for businesses with the need to cover costs. We are proposing to follow the approach agreed in the 2018 consultation and apply a phased increase in fees over two years, with 50% of the fee uplift delivered in July 2023 and full cost recovery for the services delivered from July 2024. Border control post services are the exception to this phasing option. Here, we are proposing to increase fees and achieve full cost recovery from July this year. This will help us avoid any operational conflicts with changes that may follow the review of the new borders and boundaries fees process.
Delaying this uplift further would only increase the gulf between cost and recovery, and the impact of the changes would be even greater because of the impact of compounding factors such as inflation. APHA has continued to engage with business users and business associations on service performance and service fee schedules following the 2018 consultation, and these businesses are aware of the proposed new fee schedules and have engaged solely on service performance, rather than the fee increases themselves.
This statutory instrument applies to England only. The Scottish and Welsh Governments are following a similar approach, as APHA provides the same services to both Administrations. The Scottish and Welsh Governments have laid their own corresponding legislation. I commend the draft regulations to the House.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful to my noble friend for presenting the regulations before us. First, can he explain when the last consultation was? He said that there had been a consultation in 2018. Paragraph 10.1 on page 4 of the Explanatory Memorandum refers to a consultation but seems to indicate that the last one was held in 2018, which is five years ago.
Secondly, these are huge increases. They are not 5% or 10%; we are looking at a 41% increase for the cost of animal by-products regulations, a 53% increase in the current fees of the animal health regulations, 65% for the animal health regulations relating to artificial breeding controls, and a more modest 21% increase for animal health regulations relating to the poultry health scheme. In the context of the general situation and the increases we have seen in public sector salaries, everyone balked at a 14% increase and 5% or 10% increases. I quite accept that, as my noble friend said, there has not been an increase since 2018, but these are huge increases. Can he put my mind at rest and say that there has been a more recent consultation with the industry, which is feeling fairly beleaguered?
Earlier, the noble Baroness, Lady Anderson of Stoke-on-Trent, referred to the cost of living crisis. What is becoming clear is that, while supermarket prices are going up, those increased costs are not being passed on to, for example, producers of meat and poultry. I am concerned. I realise that they are spread over two years but these are really big increases. If there has been a more recent consultation, I would be interested to know what the feedback from the industry has been in this regard.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for his introduction to this important SI, which wraps two previous SIs up into one and deals mostly with the levying of fees.
The Explanatory Memorandum indicates that the fees will use the actual
“cost to the agency and are not uplifted using inflationary rates”,
and that “no profit element” is involved. The noble Baroness, Lady McIntosh of Pickering, has already said very eloquently what a large increase there has been in these fees. The fees also cover seven different service areas provided by the Animal and Plant Health Agency, APHA, which is an executive agency of Defra. The fees have not been updated for some time, as the Minister said, with Brexit and Covid somewhat dominating the agenda.
Paragraph 7.3 of the EM gives details of how the costs will be calculated and the fees collected by APHA, stressing again that inflation will not be considered. I wonder whether this is wise. If there is no allowance for inflation, how will the true costs be calculated and passed on to those involved? An annual review—if not uplift—in fees is generally accepted in all other areas of life, so why not here? The Treasury requires, quite reasonably, that true costs be recovered. If there is no annual review of these fees and inflation is not to be considered, it is not going to be very long before a full-scale review is needed again. I would be interested to hear the Minister’s comments.
Paragraph 7.9 of the EM, relating to border control posts, indicates that documentary and identification checks will be conducted by authorised vets
“to prevent the introduction of diseases harmful to animal and public health”.
This is especially important. However, we have had debates over the years, especially since the advent of Brexit, about the availability of adequately qualified vets to conduct this inspection work. This type of work is not high on British vets’ “must do” lists. It is nevertheless extremely important that these border checks be conducted and carried out thoroughly. Is the Minister confident that sufficient trained vets are available to implement the necessary checks?
I note that, in the instrument itself, there is a category on page 7 headed “Animals not covered by any other category”. Can the Minister say whether this includes Camelids—that is, llamas and alpacas? If not, where are they covered in the instrument?
Lastly, the uplift in fees will be implemented over a two-year period, as the Minister said, with some this year and the rest in 2024. The cost will fall on businesses, charities and voluntary bodies that have not had an uplift since 2019. It is to be hoped that they will be expecting this uplift. Whether they have looked at the fees listed in the APHA section of the Government’s website is another matter; I did not find my search of that website a terribly rewarding exercise. None the less, I am happy to support this SI.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I thank the Minister for his time today and for outlining the need for the changes laid out before us. This is a wide-ranging SI, increasing the fees charged by the Animal and Plant Health Agency for a range of services, from bovine semen controls to salmonella control programmes. While His Majesty’s Opposition of course support the enforcement of our agreed regulatory framework, I worry about steep and speedy increases in associated costs, as the noble Baronesses, Lady McIntosh and Lady Bakewell, have already referred to.
Lord Benyon (Con)
I thank noble Lords who have contributed to this debate. As I described earlier, this instrument will maintain alignment of animal health inspection fees with the UK Government’s policy to recover the full costs of official checks essential to managing the risks arising from commercial activity.
My noble friend Lady McIntosh and a number of other noble Lords asked about consultation. A full public consultation was held between October and December 2015 to support the introduction of these fees, which came into force in 2018. As part of that process, a road map of two-yearly reviews of the fees was discussed with stakeholders. We have now established a process for charging fees based on this consultation, which follows option 2—to introduce fees with phased fee increases to achieve full cost recovery. This option had the widest support.
On advice from the better regulation team, and as we are still proposing the same methodology and approach as before, neither an impact assessment nor a consultation is required. We are uplifting existing fees only; there is no introduction of new fees. APHA has engaged with key stakeholders—for example, in the liaison group meetings with stakeholders and associations—and shared a detailed package of proposed changes. In August 2022 and again in March this year, letters and emails were sent to targeted stakeholders and articles were published on GOV.UK. An article published on GOV.UK in June last year informed stakeholders that:
“Any scheme uplift will be phased in over 2 years except BCP. As FCR wouldn’t be achieved until October 2023 the fees will not be reviewed for another uplift until 2 years after that. Therefore, with the exception of BCP, APHA wouldn’t be considering an uplift again until 2025 depending on the outcome of the review.”
The fees have not been uplifted for five years, so the gap between costs and income has been a burden on the taxpayer. The longer the fees are left unchanged, the more the gap will increase. APHA is spreading the increases over two years, except for BCPs. This is to give customers time to uplift their charges and make their own customers aware of the impending increase. APHA is required to fully recover costs for these services.
APHA can have statutory services only when the service is provided only by APHA and there is no alternative supplier for the customer. If there is an alternative supplier, the service should be charged as a commercial service. It is government policy that businesses benefiting from a service should pay the full cost of delivering the service rather than looking to the taxpayer to subsidise it.
I was asked why we are charging for some activities and not others. We can charge only for services that have primary legislation and allow fees to be collected. Several statutory services undertaken by APHA have a commercial benefit to their users. Decisions on which primary legislation powers to use and which services to start to charge for are based on several criteria, including the cost-effectiveness of fee recovery, availability of data and the impact on the end-user.
The fees are calculated on a whole range of different categories, including the proportion of payroll costs, non-project costs, notional charges and depreciation. Payroll costs include salary, overtime, national insurance contributions, pensions, bonuses and allowances. Non-project costs include the costs required to support the staff in performing the chargeable work: staff support, consultancy, operating consumables, training, information and communications technology, outsourced vet expenditure—a point raised by the noble Baroness, Lady Bakewell, which I will come to—and other overheads. The charge-out rates used for calculating the fees are service delivery only. Therefore, the specific costs relating to the science division work are excluded from the costs apportioned across the staff’s production hours. Our approach is in line with the duty to manage public money by demonstrating a clear timeline to the introduction of full fees. That is an accepted method across government.
The noble Baroness, Lady Bakewell, asked about vets. There is a shortage of vets in APHA. Attempts to solve this matter fill my mind, and I am working with the royal colleges and the new veterinary schools, as well as with the Home Office to make sure that the English language requirements for vets from overseas are being fulfilled. We are doing this through the “one health” agenda, making sure that we are not denying people in other countries the veterinary coverage they need but working with them to try to make it a fair system.
The noble Baroness asked about camelids. The requirement to collect fees for bovine and porcine semen approval is a statutory requirement set out in domestic legislation for those species. The APHA fees and charges team is looking at extending those fees in the workstream 2 new fees phase. The animals being reviewed as part of that workstream include deer, goats and sheep. The animals being reviewed are farmed livestock bred for furs or skins, for entering the food chain or for working the land. Horses and camelids will not be reviewed as part of workstream 2. I hope that answers the key point that the noble Baroness raised.
The noble Baroness, Lady Anderson, asked about the level of engagement. I hope I covered that in my comments on the ongoing work that APHA and Defra are doing with the key groups, making sure that it is not just them and that they are discussing it with their customers, because this undoubtedly will have an impact on them.
As I have outlined, the regulations ensure that UK government policy for full cost recovery for our animal health services is maintained and that the costs of providing these services are met solely by businesses using them. With that, I hope I have covered all the points raised and I commend the draft regulations to the Grand Committee.
Strategic Highways Company (Name Change and Consequential Amendments) Regulations 2023
(11 months, 1 week ago)
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Baroness Vere of Norbiton
That the Grand Committee do consider the Strategic Highways Company (Name Change and Consequential Amendments) Regulations 2023
Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, these draft regulations were laid before Parliament on 24 April. They make consequential changes to five pieces of legislation to reflect the change in name for the strategic highways company from Highways England to National Highways.
The change in name was announced in August 2021. National Highways has completed a range of administrative, legal and digital changes to implement its name. The name National Highways better reflects the company’s focus on delivering the Government’s roads investment programme while continuing to set highways standards for the whole of the UK. It also makes clear the distinction between local roads, which are the responsibility of local authorities, and the strategic road network, for which National Highways is responsible.
The legislation to be amended was identified by a legal analysis of the almost 100 references in legislation to the previous name, Highways England. A large number of references do not require amendment. These are development consent orders or other local orders that are similar in nature, such as traffic orders. These orders often do not have an express expiry date but are of limited application and cease to have any practical effect once an action or development is complete. Most of these entries reference National Highways’ company number, which also further reduces any risk.
As a result, just five pieces of legislation were identified for amendment via this SI. They are where there is the most risk of ambiguity or confusion arising over time, should the old name remain. The legislation is as follows: first, the Appointment of a Strategic Highways Company Order 2015; secondly, the Infrastructure Act 2015 (Strategic Highways Companies) (Consequential, Transitional and Savings Provisions) Regulations 2015; thirdly, the Equality Act 2010; fourthly, the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017; and, finally, the Local Transport Act 2008.
Where possible, the amendments will future-proof the legislation against any future name changes that may occur. This is being done for three of the five pieces of legislation being amended by inserting a reference to:
“A strategic highways company appointed under section 1 of the Infrastructure Act 2015”,
instead of a potentially time-limited reference to National Highways.
To conclude, these draft regulations will make consequential changes to a small number of references to Highways England, identified by a legal analysis as those most at risk of ambiguity or confusion over time. Where possible, the amended wording has been future-proofed. I beg to move.
Lord Berkeley (Lab)
My Lords, I am grateful to the Minister for introducing these very interesting draft regulations. I have a few questions to ask her, which I am sure she will not be surprised about.
The main question is: how much is this change going to cost? It obviously has costs in regulation time, but I imagine that there are signs all around the network saying how clever the Highways Agency is. It will have to have new signs there and on much other documentation, so it would be nice to know how much all this is going to cost.
My other main question relates to the purpose of changing the name of the Highways England Company to National Highways. Which nation are we talking about? Is it the United Kingdom of Great Britain and Northern Ireland? Is it Great Britain—in other words, England, Scotland and Wales? Is it England and Wales, or what? There seem to be one or two differences in the references in the Schedule referred to in these regulations.
Baroness Humphreys (LD)
My Lords, on the face of it, this secondary legislation is simple, reflecting a name change that took place in 2021, when Highways England Company Ltd became National Highways Ltd. It is a simple change, but one that raises a number of questions, some of which the noble Lord, Lord Berkeley, has raised. I hope that the Minister will be able to answer my questions as well.
I thank the Minister for providing an updated Explanatory Memorandum in response to the issues raised in the 38th report from the Secondary Legislation Scrutiny Committee. The updated EM attempts to explain the rationale behind the name change and gives details of the costs incurred, both of which are welcome, although the rationale for the name change is rather weak.
The Secondary Legislation Scrutiny Committee encourages us to take the opportunity to ask the Minister to explain the choice of the new name, which it finds unclear
“as the ‘National Highways’ remit does not extend to Scotland, Wales or Northern Ireland”.
It is all very confusing, as the other great piece of national infrastructure, National Rail, does refer to England, Scotland and Wales. It leaves me and my tiny mind feeling rather confused.
I am concerned about the second sentence in paragraph 7.2 of the Explanatory Memorandum, which says:
“The strategic road network plays a key role by connecting England’s regions and providing the most heavily used cross-border routes between England, Scotland and Wales. The name signalled a new era for the company and recognises the role it plays in ensuring national connectivity”.
I am looking for assurances from the Minister that National Highways will not claim responsibility for cross-border routes within Wales and that the responsibilities and powers of the Welsh Government will not be challenged.
I have two final short questions. First, given that the new name came into being in 2021, why has it taken so long for this SI to come before Parliament? Secondly, I recognise that we are dealing with a fait accompli and that there is nothing we can do about the SI, but what would have been wrong with calling the new organisation National Highways England? At least that would have made it clear that the body had responsibility for the nation of England, not the nation of the UK. I look forward to the Minister’s response.
Baroness Taylor of Stevenage (Lab)
My Lords, I am grateful to the noble Baroness and noble Lord who have contributed to the debate, and to the Minister for her clear explanation, at least of the purpose of the regulations. On the face of it, as the noble Baroness, Lady Humphreys, said, this is a fairly straightforward process of updating a number of pieces of legislation with the current name of National Highways, and we would not want to object to the statutory instrument from that point of view.
However, I pick up on some of the questions that have been asked previously but on which I could not trace any detailed answer from Ministers in the other place or your Lordships’ House. First, my noble friend Lord Berkeley referred to the change from Highways England and set out some of the confusion that might arise because different descriptions are used in different pieces of legislation. In different countries of the UK, different names apply. That is very confusing. The noble Baroness, Lady Humphreys, also referred to that. It seems blindingly obvious to me that National Highways England would have been a better name. She also referred to the rationale for the change being rather weak. I agreed with that when I read the explanation.
The Secondary Legislation Scrutiny Committee suggested that the Minister may wish to explain the name, given that “national” is confusing for an organisation focused on only one nation of the UK. I hope the Minister will give us a full explanation so that we can all understand how it applies to different pieces of highways legislation that reflect different parts of the UK.
Secondly, it was my experience in local government that the new name of the agency is not commonly known, resulting in the term Highways England still being in very common usage. Do the Government intend to do anything further to communicate the change of name once the situation between the four nations has been clarified?
The regulations have the stated aim of future-proofing the legislation against any future name changes. Does the Minister have any plans to update other legislation to future-proof against potential name changes of other bodies? We have heard a couple of suggestions: we might have National Highways Wales or National Highways Scotland. Your Lordships will appreciate that I ask this question because we all know that name changes and subsequent rebranding come at considerable cost. The Minister referred to digital, legal, administrative and communication costs, and so on, and my noble friend Lord Berkeley also referred to them.
Lastly, I note that the Minister said that road traffic orders will not be changed. Presumably, this means that local authorities need have no concerns about any legal challenges that might arise as a result of the fact that the name of the agency has now changed. Those are my questions; I thank the Minister.
Baroness Vere of Norbiton (Con)
My Lords, I am enormously grateful for noble Lords’ contributions in this brief debate on this statutory instrument. I will do my best to answer their questions and perhaps address some of the ideas that have come forward in this Grand Committee about other names that might have been used; I am afraid that I do not agree with noble Lords there.
I turn first to cost, which was mentioned by the noble Lord, Lord Berkeley. National Highways met the cost of the name change from within its budget and kept costs to a minimum. There has been no “big bang” rebranding, as there was never intended to be and there does not need to be. Existing items and assets such as uniforms and fleet vehicles will continue to use the old branding until they reach their end of life. We estimate the total cost of the change to be around £312,000.
The noble Baroness, Lady Taylor, asked whether it matters that this change is not commonly known. From my experience in my several years as Roads Minister, it is becoming known and will feed out into the system. It is not the end of the world if somebody calls National Highways “Highways England”. Indeed, this leads back to the rationale for this statutory instrument. It does not bring about the name change; the name change happened at Companies House.
The noble Baroness, Lady Humphreys, talked about a new organisation. There is no new organisation. Exactly the same organisation exists, with exactly the same company number as exists in many long-term contracts and other such things that are held by the organisation. I assure the noble Baroness, Lady Taylor, that things like TROs—traffic regulation orders—DCOs and other local orders will continue to be valid.
Basically, the legal assessment is that it is clear from Companies House that the name change has been made. Let us project ourselves 15 or 20 years down the road to when some of your Lordships—including me—are perhaps no longer in our roles. People might say, “Hang on a minute, what’s this Highways England?” That is why we are doing this; it is for many years hence rather than for now. We do not believe that there is any significant risk of there being legal challenges because the name change sits in Companies House and will say “formerly known as Highways England” there. So that exists, but one never knows what will happen in the future.
I turn back to the rationale for doing this, which brings in many of the questions asked by the noble Lord, Lord Berkeley—indeed, by all speakers. Noble Lords asked, “Why did you do it? Surely Highways England does England”. That is not right, which is the point that we were trying to get across in the Explanatory Memorandum and that I tried to get across in my opening remarks. National Highways does a large number of things and is hugely respected. It has a different remit in different pieces of legislation. However, it does an awful lot of non-statutory work as well.
For example, I am perfectly comfortable calling National Highways “national” because it develops highway standards that are used across the UK. It is leading the way on the delivery of greener roads; that information is used by all parts of the UK. It is also developing road infrastructure standards for the connected and autonomous era, which refers to self-driving vehicles. Again, that sort of work will be used throughout the UK. I am not suggesting at all that, any minute now, National Highways will take over the strategic road network—or anything else—in Wales or Scotland. I am saying that what it does and has done for a long time is work closely with the devolved Administrations to ensure that we do not have completely different standards in different parts of the United Kingdom because, clearly, that would not be particularly positive.
Again, this is all about collaboration when it comes to strategic roads, which do not end at a specific border. It is the case that the A1 switches over to Transport Scotland as it crosses the border but that does not mean that we have to dismiss the work that National Highways does in many other really important statutory and non-statutory areas and suddenly get a bit funny about the name. That is why “National Highways England” does not work. It is not about just England; that is the whole point.
As I have explained, there is no change to National Highways’ remit or Welsh devolution and no new organisation. The only thing that is new is the name. We are bringing this measure in purely so that, many years down the track and in the mists of time, people do not get confused when they look at something that says “Highways England” and wonder. We just want to make sure that that is not the case.
There are two pieces of legislation that we have been unable to future-proof. Should National Highways change its name again—I very much hope that it does not—those two pieces of legislation would need to be amended. However, as I say, I suspect that the chances of that happening are relatively limited.
Baroness Taylor of Stevenage (Lab)
Before the Minister sits down, can I ask about the questions that we raised on Scotland and Wales? Will National Highways have a different remit in those nations of the UK? I understand the point about it doing certain things across the UK—the Minister mentioned highway standards, greener roads and infrastructure standards—but it will presumably have different roles for the management of roads in Wales and Scotland than it has in England. That is where confusion is likely to occur. Will we end up having more secondary legislation that clearly sets that out?
Baroness Vere of Norbiton (Con)
It has absolutely no role in the management of roads in Scotland and Wales. It never has had and never will have. I commend this instrument to the Committee.
Medical Devices (Amendment) (Great Britain) Regulations 2023
(11 months, 1 week ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Markham
That the Grand Committee do consider the Medical Devices (Amendment) (Great Britain) Regulations 2023.
Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
My Lords, I am grateful to be here to debate these important regulations. Plasters for a scraped knee, blood tests that detect cancer, pacemakers, pregnancy tests and software that calculates insulin doses for people with diabetes—medical devices are used by millions every day.
The MHRA regulates medical devices in the UK, helping to ensure that these products are safe and perform as intended. Today, almost 2 million different medical products are registered with the MHRA for use in the UK, of which an estimated 500,000 different product types are regularly used in the NHS. The past few years have been a time of great change for medical devices. The Covid-19 pandemic saw big advances in the life sciences and diagnostics sectors.
This instrument is intended to give the medtech sector additional time to transition to our post-EU exit regime for medical devices. It extends the time during which manufacturers and importers can place CE-marked medical devices on the Great British market.
Since January 2021, manufacturers wishing to place a medical device on the GB market have been able to follow either the post-Brexit UK route and use a UKCA mark or the EU legislation and use a CE mark. Without this SI, this flexibility would cease on 30 June this year, with only the UKCA route available. This will impact an estimated 11,000 businesses that have registered medical devices with the MHRA with a CE mark only. These regulations will allow industry the flexibility to use either mark on medical devices for longer.
Continuity of supply is key and we recognise that the industry needs more time to prepare to transition. Without it, manufacturers of medical devices without a UKCA mark would have to stop supplying their products in GB from this July. This could mean some patients losing access to the devices that they need. I make it clear that this instrument has no impact on medical devices already on the market with a UKCA mark.
I will now take a moment to summarise the key changes. First, the instrument provides that medical devices compliant with the EU medical devices directive or EU active implantable medical devices directive with a valid declaration of conformity and CE mark can be placed on the GB market up until the expiry of the device certificate or 30 June 2028, whichever is sooner. Secondly, in vitro diagnostic medical devices, or IVDs, that are compliant with the EU IVD directive can be placed on the GB market up until the expiry of the device certificate or 30 June 2030, whichever is sooner. Thirdly, medical devices and IVDs, including custom-made devices, that are compliant with the EU medical devices regulation or the EU IVD regulation can be placed on the GB market up until 30 June 2030. This is in keeping with the Government’s response to the consultation on the future regulation of medical devices, which ran from September to November 2021.
I thank the SLSC for its thorough review of this instrument. The committee raised with the MHRA the important practical concern of whether firms will be incentivised to seek UKCA certification at an additional cost if CE certification is still accepted. Since January 2021, it has been possible to use a UKCA mark on medical devices. In the year ending March 2023, an estimated 9% of new medical products—around 71,000—were registered with the MHRA with UKCA marking, despite CE marking being an option.
Manufacturers will be prompted to consider shifting to using the UKCA mark through the transition period, including as their CE certificates expire. To transition to the UKCA mark, many manufacturers will need to use a conformity assessment body approved by the MHRA. The capacity of these approved bodies is currently limited. The MHRA is working proactively to build approved body capacity to allow a smooth transition to the UKCA mark. The agency engages regularly with the medtech sector and will continue to do so as it develops a future regime.
By supporting these regulations, we can help ensure that patients and the wider public benefit from continued access to quality, safe medical devices; that the UK remains an attractive market for manufacturers of medical devices; and that the wider medtech industry has adequate time to prepare for the transition to the future regulatory framework for medical devices. I commend these regulations to the Committee.
Lord Hunt of Kings Heath (Lab)
My Lords, I thank the Minister for his explanation of the statutory instrument. I do not oppose it at all, although the fact that the Government are doing it seems to reflect the serious lack of preparation and planning for the post-Brexit world in which we now exist.
I have two points to put to the Minister. The first is in relation to the 30 June 2030 cut-off date for the sole use of UK conformity assessments for medical devices placed on the market in Great Britain. My understanding is that the transition timelines to 2030 are causing significant confusion for companies, especially SMEs in the health tech and medical devices sector. I refer noble Lords to paragraphs 7.6 and 7.7 of the Explanatory Memorandum in particular, which begin to explore some of the complexities. I say this to the Minister: a clear timeline would be very helpful in giving clarity and certainty to companies.
My second point picks up the point that the Minister made right at the end of his opening speech about the MHRA’s capacity and its plans to reform the current regulatory system. I pay tribute to the MHRA’s work and am sure that it will rise to the challenge but the plan includes proposals
“to reclassify products, to increase information gathered at the point of devices’ registration, to strengthen post-market surveillance requirements to ensure better incident monitoring reporting and vigilance, and to introduce alternative routes to market”.
I can see the reasons for this, of course, but additional regulatory burdens for industry to supply the UK may mean that manufacturers will not bother and will focus on the EU and other larger, certainly more valuable, markets. The number of products made just for the NHS is very small indeed.
The Minister will be aware that the Chancellor talked in the Budget about the rapid, almost automatic approval of devices approved in markets such as the US. Is the MHRA signed up to this? It seems essential to build on current product recognition routes from the EU and rapidly explore building a UK product regulation equivalence route for the approval of medical devices to include other trusted jurisdictions, such as the US, for a greater proportion of products. I would be grateful if the Minister could comment on this.
I now come to the very serious capacity and capability constraints. Clearly, the MHRA has suffered from the reduction in its funding, especially on the devices front. I hope that the Minister will be able to say what is being done to improve it. Also, what philosophy will the MHRA adopt in future? Will it continue to oversee the regulatory process in relation to devices or will it take a more expansive, more centralised and certainly more expensive FDA-style approach, with the attendant recruitment challenges that that brings? It has been announced that one of the MHRA’s senior executives, Dr Laura Squire, will focus on devices and that there is a recognition of skill shortages but I cannot begin to overestimate the problem for UK companies if, in meeting the target that the SI now sets, they find that one of the major problems is a lack of capacity in the MHRA to provide the necessary speedy regulatory assurance that is required.
This comment can generally be made about the post-Brexit arrangements as a whole. If, by “taking back control”, the Government mean that they are serious about developing a new regulatory regime that serves the public interest and is effective in attracting industry to this country, they really must ensure that the regulatory system is both fast and effective. This is the major issue that must lie behind this SI.
Lord Lansley (Con)
My Lords, I will speak about the medical devices issues in these regulations. I thank my noble friend the Minister for introducing them. To some extent, I share some of the concerns expressed by the noble Lord, Lord Hunt of Kings Heath. He and I will recall our debates on what is now the Medicines and Medical Devices Act 2021, which provides the power under which these regulations are being made. When the new medical device regulations are laid, we will look very carefully at the extent to which they reflect the considerations put into Section 15 of the 2021 Act, which are about not just the quality, safety and availability of medicines but the ability to support both clinical research and the supply and manufacture of medical devices in this country.
That latter point bears directly on this statutory instrument, which is helpful in that respect because it extends the transitional period. This will create an opportunity for manufacturers based in or exporting to the United Kingdom to supply medical devices here. They will be able to adapt to the changes in the regulations that are yet to come—we do not know when. My noble friend might like to tell us a bit more about that timing since, in a sense, extending the transitional period is all very well but you have to kick the transition off. We need our regulations to be in place in order to see how significant the differences between the existing regulations and the future ones are and how different our regulations are from those that apply in the European Union.
I will make a general point, on which I know my noble friend can say little at this stage. When we debated medical devices regulation and initially agreed that we would accept the UK CE marking for a period of time, there was always a question as to whether it made much sense to disapply the UK CE marking and when to do so.
Lord Allan of Hallam (LD)
My Lords, these Benches also welcome the Minister’s introduction to this statutory instrument. I am starting to get used to being presented with a statutory instrument and told, “You can either support this or the sky could fall in on the heads of some part of British industry tomorrow”. It is a fairly straightforward choice: of course we support the statutory instrument going ahead to allow the medtech sector a little more breathing space.
A number of questions have already been touched on about where we are going. The first is a specific one. The MHRA has said that the start date for the new UK regime is 1 July 2025, after which, as I understand it, no new devices with CE marks will be recognised. The existing ones will roll over, as we are discussing today, but post 1 July 2025, any new devices coming onto the market will need the UKCA mark. I have had representations from people in the industry who think that that is what the collective information they have received means, but it would be helpful if the Minister could clarify that: that after 1 July 2025, the new UK regime is in place and new CE marks will not be recognised after that date.
The second question is one correctly raised by the noble Lord, Lord Hunt: where the capacity to carry out the assessment will come from. Of course, the will is there, but what if the staff are not? The Minister is used to discussing in this House staffing across all different aspects of the health sector. This is another aspect where specialist staff will be needed. I am particularly mindful of the Minister’s introduction, when he talked about the important role of software now in medical devices, many of which are software controlled. That is a specialist and high-value area, and it is important that we get some assurances that there will be the capacity, or the Government have a path to developing the capacity, to have people who can do the approvals, particularly of sophisticated software-controlled devices and—dare I say it—flavour of the month, artificial intelligence-controlled devices, which will be embedded in future. Again, that is a very high value, specialist function. MHRA will need to have the capacity to certify devices that use artificial intelligence and other sophisticated forms of software.
The third question is a very specific one about class 1 low-risk devices, which, as I understand it, are things such as wheelchairs and stethoscopes. Again, it would be helpful if the Minister clarified what is intended here and how they fit into the transitional scheme that is being extended today.
The fourth question is about labelling. It would be really helpful for people in our medtech industry who are seeking to export to understand how labelling will work, and specifically in the context of the Great Britain/Northern Ireland question. The Minister referred to medical devices for the Great British market. There is an issue of intonation here: is it the “great British” market or the “Great British” market? I think in this case it is the latter: the market of Great Britain, not Northern Ireland, because of the arrangements we have there. It is really important that people who are making devices understand how labelling will work, particularly if they are selling devices across the island of Ireland, where they are in the Northern Irish and Republic of Ireland markets, but also exporters more generally.
The final issue I think is interesting is information-sharing and government distributing information to the sector. Paragraph 12.4 of the Explanatory Memorandum says that there will be
“some costs for the industry associated with familiarisation with the regulations”.
I think it is much bigger than that, and the noble Lord, Lord Lansley, was quite right: the industry needs to understand the direction of travel, particularly around convergence/divergence. The sector, which, as the Minister rightly said, is an important one in the United Kingdom as a whole—not just in Great Britain, in this case—is in a very different place and needs the information now that will enable it to plan. For example, if a UK-based entity will in future be trying to conform to two very divergent regimes in the EU and Great Britain, it may well want to structure accordingly. It might want to have separate legal entities in the EU and the United Kingdom. The situation would be quite different if the message the Government are giving is that there will be the kind of convergence the noble Lord, Lord Lansley, talked about, whereby approvals might be transferable.
The sector needs to make those kinds of decisions quite quickly. We are talking about an extension of the CE mark to 2030 but, as I said in my opening question, we are talking about the new British regime kicking in in 2025. That is not far away in business terms, so it is extremely important that we get some clarity from the Government—to the extent that they can give it—about the future direction of travel and whether they hope for or aspire to a regime of mutual recognition or instead anticipate that it would be quite divergent.
We need information not just about the technical details of what these regulations mean today but about the direction of travel and how approval processes may be changing over time, which is important. As I said, we will not oppose a statutory instrument that needs to be in force by 1 July to stop the sky falling on people’s heads, but I hope the Minister will take this opportunity to answer some of the questions that people building businesses in the United Kingdom and elsewhere need answers to in order to get essential devices. That kind of information would help them to plan and be most effective in supporting patients.
Baroness Wheeler (Lab)
My Lords, I thank the Minister for introducing the SI and other noble Lords who have spoken today. Those of us involved in the somewhat tortuous passage of the Medicines and Medical Devices Act 2021, and subsequent SIs designed to bring about the transition from the previous, easily understood CE assessment under EU legislation to the UK conformity assessment marking system for medical devices, knew and predicted that the new and complex system needed much more time to develop the new arrangements and work out how they would work, and that the deadline set by the Government for transition would inevitably have to be extended. This last-minute SI fully recognises this, although many questions and issues remain unclear, as we have heard.
Given the complexity of the assessment marking system and what is proposed in this SI, I thank our Secondary Legislation Scrutiny Committee for setting out concise reasons, which were clearer than the SI’s Explanatory Memorandum, about the key points of what the SI seeks to do and why the seven-year extension for some medical devices is needed. On the reasons, the committee says:
“The extension is partly in response to a Europe-wide shortage of assessment capacity for these and other goods and also due to the Medicines and Healthcare products Regulatory Agency’s intention to strengthen the future regulatory framework for medical devices … in a way that both improves safety while also enabling innovation”.
I would be grateful if the Minister could comment on the Europe-wide shortage and the impact that it is currently having.
We have seen today that nobody is at all clear about what is going to happen, when the work and the timelines for MHRA’s new framework will be ready and when the extensive reform that will apply from 2025 will be published. I look forward to the Minister’s explanation of what paragraph 7.3 of the SI Explanatory Memorandum anticipates are the steps the MHRA will take
“to build approved body capacity to meet the demand for UKCA … marking”—
to which a number of noble Lords referred—in order to achieve the capacity when the transition periods after 2025 expire for the relevant medical devices. The capacity covers in particular the ability to assess higher-risk medical devices which we are not yet in a position to assess.
Paragraph 6.9 of the memorandum refers to the MHRA’s intention to lay “further instruments” under the MMD Act and “significant amendments” to regulations. Can the Minister update the Committee on the proposed timetable for this? Is the consultation exercise undertaken last year still under consideration by the MHRA as part of its developing policy? Will a further consultation on the MHRA’s new framework proposals be undertaken and, if so, what is the timescale for this?
The SLSC points out that the MHRA’s plans for reform are extensive. My noble friend Lord Hunt referred to them: reclassifying products, gathering information at the point of registration, strengthening surveillance, better incident reporting and so on. The committee stressed that these are excellent aims, but how and when the MHRA will achieve them—or try to—remains unclear.
The SLSC also refers to the MHRA’s current slow progress: it still does not have estimates of the total number of registered medical devices that are UKCA rather than CE marked. Of the 789,581 new medical products that were registered with the MHRA between April 2021 and March 2022 only just over 9% were UKCA marked. Is the Minister confident that this rate of progress will enable the MHRA to have a proposed new scheme in place in 2025 for transition to 2030?
Lord Markham (Con)
I thank noble Lords for their valuable interventions; I will try to answer a lot of their points as far as is possible.
First, I completely agree that clarity is vital in this market. As ever, as well as trying as best as I can to reply now, I will follow up in writing so that there is absolute clarity there. A lot of this depends on the timing. I say this up front in answer to the question from the noble Lord, Lord Allan, on whether things will change for new products from 2025: no. In effect, we are saying that the deadline is the deadline and, as long as a product is approved during that period, it will run to 2028 or 2030. In fact, new products will now be largely under the new EU regulations so will generally run to 2030. Effectively, that 2025 deadline will apply to any new products even if they are approved and get their CE registration after 2025—say, in 2026. Generally, they will run up to the 2030 deadline.
I hope that what I have said clears up that point but, again, I will set all this out in writing; I am sure that I will be thumped by the team behind me if I misspoke. I think I proved the point very well in my explanation just now: this is non-trivial. As a businessperson by background, I know that, if you want people to invest in this market, they absolutely need to understand the rules.
Two major themes came through in all the points and questions. First, we want to maximise the supply of products. That has to be a good thing for us in making sure that we benefit as much as possible, and it goes to us recognising other quality—for want of a better word—regulators. You could say that approving the ceiling now up to 2028 and 2030 is a step along that way.
Similarly, we want to maximise capacity for our regulators. If you start to approve other quality regulators’ approvals, you are in effect pooling capacity and using their regulatory capacity as well. We know that that is an issue. In the last Budget, the MHRA was given a £10 million funding increase to make sure that it can recruit, but we recognise that it having that capacity is vital to all this.
On the point about mutual recognition, we can of course do it in only one way but, as in most free trade arguments, there is an understanding that it is generally to our benefit to recognise other quality regimes. That is to our benefit in terms of having a high supply of quality items here. Clearly, you want them to do the same in reverse. As ever in these things, there is a bit of trade-off in the negotiation: “Do I want to hold back so that I can maximise my leverage and get them to agree with it all?” Generally, as mentioned by the Chancellor, we are at the moment on the page of it being in our interests to recognise quality regulations from other countries because that can maximise our supply. We hope that they will recognise ours in a similar way, obviously, but that is in their power rather than ours.
I will try to answer some specific questions. There was a question from the noble Lord, Lord Allan, about class 1, low-risk products. Generally, the answer is yes, but this again goes to some of the confusion so I will definitely set this out in writing as well. It is not a blanket “yes”, which I appreciate does not help. Class 1, low-risk devices will benefit from the transitional periods in this instrument only where they are within the EU’s own transitional arrangements. I hope that that make sense.
Lord Lansley (Con)
My noble friend was talking about capacity. One aspect of it is the capacity of the regulators here and in the EU but, in some ways, I am equally concerned about the capacity in the approved bodies, or notified bodies as the EU has them. That is what has been delaying the EU’s regulations and its ability to implement them. It could equally be a problem here. We would both have less of a problem if the approved bodies in the European Union and the United Kingdom were all able to work on both sets of certificates.
Lord Markham (Con)
Yes; that is what I mean by pooling capacity, for want of a better phrase. My noble friend is saying that we can effectively use the EU’s capacity if we are willing to accept that it is doing proper scrutiny and measurement of products. By and large, we would all agree that that is a sensible approach, just as, similarly, there are situations in a lot of clinical research where, even if the regulators want a final sign-off, accepting each other’s data has to be sensible in terms of pooling capacity.
As ever with these things, it takes two to tango. We need to prove willingness on our side. I hope that the recent Windsor Framework agreement is a way to put things on a co-operative basis. Building trust on both sides takes a series of steps but we are trying to put our best foot forward and we hope that that is met in response.
This goes to the point about the EU-wide shortage of approved body capacity, which impacts us all. If, as we all agree, we want the best supply of products here, it must clearly be a concern if they cannot get through that way. If a company is finding that, through a lack of capacity, they cannot get through the EU route because there is no capacity there, it now has the opportunity to take the UKCA route if our capacity is in place, with the increases to the MHRA to which I referred.
Baroness Wheeler (Lab)
When the Minister writes—I understand that this is very complex; I would certainly appreciate having it in writing—could he refer to three things? The first is small businesses; the SI says that it will not have an impact on them but it is clear that it will. When? The second is the timetable for the new MHRA framework being in place, whether there will be consultation around it and whether that process is separate or uses the consultation that took place last year. The final issue is that of the timetable for the new MMD regulations—that is, the timescale by which we will see them coming along. It will help us make sense of the totality of this if we know when all this work is coming forward.
Lord Markham (Con)
It is probably best if I write on those points. In terms of timing, the MHRA is planning a further consultation on its future regime from October, but I will come back on those other points.
Lord Allan of Hallam (LD)
On the labelling question, I wonder if I could helpfully suggest to the Minister something like an infographic, which shows what labels are needed in Great Britain and Northern Ireland and which labels would be helpful on which dates. Somebody who is making devices could just look at that and go, “I’ll need that kind of labelling at this stage of the transition process”. That would help.
Lord Markham (Con)
I absolutely agree. To clarify—I may have used the terms interchangeably—I am talking here about the Great Britain market. It is a great British market as well but we are talking particularly about Great Britain because we know that, under the Windsor Framework, Northern Ireland has separate CE arrangements.
I think I have answered as much as I can at this point. I will clarify further in writing. I thank noble Lords because this debate has been incredibly valuable in making sure that we are getting this right; it is non-trivial, to say the least. With that, I commend this instrument to the Committee.
Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023
(11 months, 1 week ago)
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Lord Caine
That the Grand Committee do consider the Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023
Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
My Lords, under this draft order, which was laid before this House on 24 April, trials without a jury can take place in Northern Ireland where the statutory conditions are met for a further two years, until 31 July 2025. The current provisions will expire on 31 July this year. Following a public consultation, and after consideration of the wider security situation in Northern Ireland, my right honourable friend the Secretary of State considers it necessary to seek an extension to these provisions to ensure the continued safe administration of justice in specific cases.
I am keenly aware that this is the eighth extension of these powers since they came into operation in 2007. I hope that noble Lords will be assured of the continued necessity of these provisions for a further two years. This decision was made carefully and informed by a detailed public consultation process, as well as by the work of the non-jury trial working group. This group was established following recommendations by the former Independent Reviewer of the Justice and Security Act, Mr David Seymour CB, and is composed of representatives from the Public Prosecution Service for Northern Ireland, the Police Service of Northern Ireland, the Court Service, the Bar, the Law Society and other independent organisations.
The group has worked to produce detailed reports for the independent reviewer and to develop a set of indicators to assist the Secretary of State in determining whether these non-jury trial provisions remain necessary. The indicators include assessments of the current levels of paramilitary activity and intimidation in Northern Ireland. In conjunction with the consultation responses, the Secretary of State considered these and reached the determination that they further demonstrate that it would not be appropriate to remove the non-jury trial provisions at this time.
I am of course keenly aware of the disappointment that many noble Lords across the House will feel that the security situation today necessitates a further extension of these provisions. We should not, however, lose sight of the real progress that has been made since the dark days of the so-called Troubles. Today, there is a strong presumption of jury trial in Northern Ireland, and in 2021 only 0.6% of all Crown Court cases were conducted without a jury; that is, eight out of 1,358. By contrast, at the peak of the Diplock court system in the mid-1980s, there were more than 300 such cases per year.
Under the provisions of the 2007 Act, non-jury trials are reserved for use only in exceptional cases where the Director of Public Prosecutions for Northern Ireland deems it to be necessary. As correctly stated on 23 May in the other place by the spokesperson for the Official Opposition:
“The provision for non-jury trials is a little-used but vital tool in ensuring the administration of justice”.—[Official Report, Commons, Delegated Legislation Committee, 23/5/23; col. 6.]
I agree with that statement.
As I know noble Lords will appreciate, these proportionate measures remain necessary to safeguard against risks such as juror intimidation and juror bias in an extremely small number of cases. A non-jury trial may be permitted if the defendant is associated with a proscribed organisation or if the offence being tried is in connection with religious or political hostility. Such cases are high profile and continue to provoke strong public opinion on both sides of the community.
Like their predecessors, this Government remain committed to bringing an end to these provisions when it is safe and compatible with the interests of justice to do so. We firmly believe, however, that now is not the time to take this step.
As demonstrated by the recent increase in the threat level to “severe” and the abhorrent attack on DCI John Caldwell in February, a small number of people in Northern Ireland continue to try to destabilise the political situation through acts of terrorist violence. Their activity causes harm to individuals and communities across Northern Ireland.
Despite courageous work by the Police Service of Northern Ireland and others across the community in Northern Ireland, terrorist and paramilitary groups continue to exert influence and control in communities where they operate. In the year 2021-22 there were 163 recorded offences of intimidation or threats to harm witnesses, and 170 households were accepted as homeless due to intimidation in 2022. These are facts that we cannot ignore.
It would be counterintuitive to believe that the same issues faced by witnesses would not be replicated should they be asked to sit as a juror in these cases. Furthermore, the most recent results from the Northern Ireland Life and Times survey in 2022 found that 17% of respondents believed that paramilitary groups create fear and intimidation in their area.
I trust noble Lords will agree that the safety of the people in Northern Ireland and the administration of justice are paramount. The Government remain committed to working strategically with security partners to tackle the threat from Northern Ireland-related terrorism and to support the Northern Ireland Executive’s programme to tackle paramilitary activity. However, we are not prepared to put the safety of individuals or the administration of justice at risk and believe that there has not been sufficient change in the security situation over the last two years to demonstrate that the non-jury trial provisions are no longer required.
In conclusion, I am sure that I can count on the support of noble Lords across the Committee for the Government’s work to safeguard the administration of justice and to normalise all security arrangements as soon as it is safe to do so. On that basis, I beg to move.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I thank the Minister for his presentation of the SI. I declare an interest as a member of your Lordships’ Secondary Legislation Scrutiny Committee.
Some 29 years after the ceasefires and 25 years since the Good Friday agreement, it is worrying that there is still a need for an extension of such a power. Although I am not personally opposed to this legislation, I feel that non-jury trials should be an exception rather than the rule. I think the Minister characterised it in that light in his presentation, but I want to know how many such trials took place last year. We have the figure for 2021 in the Explanatory Memorandum but not for 2022.
The Minister gave us the indicators. We probably could have guesstimated those anyway.
We know that the threat level was increased on 28 March this year to “severe”, due to the increased level of dissident republican activity. As the Minister referred to, we had the threatened murder of DCI Caldwell. I am glad to see that he is making a recovery, having been released from hospital and having had some time at home. In fact, he was able to attend the garden party last week at Hillsborough, which showed an improvement in his physical health. I hope he makes enormous strides in that respect.
Only a few days ago, we witnessed on our TV screens and social media an alleged taxi driver taking a gun to a client. He was sacked from his job, although I understand he was not necessarily acting for that firm at the time. Notwithstanding that, he was apparently acting as a drug enforcer for one of the paramilitary organisations in Northern Ireland.
Some 29 years since the ceasefires, the public in Northern Ireland want an end to such paramilitary and criminal activity; they have had enough of it. They do not want to be brought to heel by such paramilitary organisations and criminal gangs; they want to see an end to it. If this debate does anything, it will tell those people, “Get off the backs of the people of Northern Ireland”. We are sick, sore and tired of it, and we want to live in peace and harmony. We want to see the restoration of our political institutions, which, I hope, will be able to help foster economic opportunity for us all.
Related to this is the legacy Bill, which the Minister is also involved in. I know that on the Bill’s last day in Committee he referred to game-changing government amendments. When will they be published? I hope that he is not as surprised as the expression on his face suggests. I want to know when they will be available and what they will cover. Will they enable access to inquests and inquiries? Will they be compatible with the ECHR?
In conclusion, although I do not have a strong aversion to this SI and I generally support it, I hope that it will be the exception to the rule. There could very well be a further extension, depending on terrorist and paramilitary activity in 2025, but I hope that we are looking to bright, fresher new days where terrorism will definitely be a thing of the past and we will not need this type of legislation.
Lord Browne of Belmont (DUP)
My Lords, I support these non-jury provisions. I am sure that we all want a jury-based justice system. The diversity of a jury is one of its strengths and it has been proved that juries are fair, effective and efficient. However, as we have heard, unfortunately there exists a severe threat from terrorism in Northern Ireland. It is to be regretted that there is still present in Northern Ireland society a small number of people who are actively involved in terrorism. They do not hesitate to intimidate jury members, witnesses and families involved in their cases. Therefore, the extension of the duration of non-jury trial provision is needed.
Of course, as we have heard, it is hoped that the suspension of jury trials will be a temporary measure and that the time will come when non-jury trials will not be necessary, but this can be achieved only when it is safe to do so. As we have heard, it is important to note that the vast majority of Crown Court cases in Northern Ireland are held with a jury. During 2021, only eight non-jury trials took place, which means that 0.6% of all Crown Court cases in Northern Ireland were conducted without a jury.
There are many safeguards in this before we can have a non-jury system. For example, the Director of Public Prosecutions for Northern Ireland can only consider issuing a certificate for a non-jury trial. The judge also must give reasonable reasons for convictions. Indeed, from the defendant’s point of view, any person convicted before a non-jury court has a right of appeal against sentence or conviction without leave. There are built-in safeguards before these trials can take place.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I thank the Minister for the manner in which he introduced the legislation. Not one of us from Northern Ireland would desire to have this legislation on the statute book at all; we would love to see its end. But then we have to ask ourselves: is it needed? The statistics have been produced in the Explanatory Memorandum, and the notes provided under the heading “policy background” at paragraph 7.5 remind us that on 28 March 2023, the level of threat in Northern Ireland related to terrorism increased from “substantial” to “severe”. We wish it were not true, but it is the reality of the situation on the ground.
We have a continual severe threat, especially against members of the security forces. We saw that with DCI Caldwell, but we thank God in His mercy that his life was spared. I join the noble Baroness, Lady Ritchie, in expressing absolute delight that he was able to be present with His Majesty the King at the garden party. That certainly shows an improvement. We hope that that continues and that he will be restored to a very good measure of health and strength. We know that that was not the intention of those who had planned his murder. Sad to say, the reality of the situation is that they in their hearts would have plans to continue. There is no reason to believe that the terrorist organisations—the dissident republicans—wish to step aside from their acts of terror. We have to face that reality, and the order before us does that.
There is genuine concern about jury threat, intimidation, tampering, or even bias, but we want to ensure that the administration of justice in Northern Ireland, which is the heartbeat of any democratic society, continues. I know that we would long to see the Minister say that this is the last occasion on which that he would ever bring these provisions before your Lordships. However, we have seen just how long they have continued until now. It is not in the hands of noble Lords in this Committee to bring that about, but we hope and pray that we will soon ensure that it is unnecessary and get back to jury trials, which would be more acceptable within society.
I have a simple question for the Minister. I notice from the notes we were given that only a small number of responses were made to the extension of the order; only a very small number of representations were made. Does he have any reason why the number was so small? Does he believe that the community in general is willing to accept that this is a reality that has to be carried on in Northern Ireland at this specific time?
Baroness Suttie (LD)
My Lords, I too thank the Minister for his detailed explanation of this order. Without repeating the various points made by other noble Lords in this short debate, I add my voice to those saying that this eighth extension of these provisions is deeply to be regretted, but clearly, while the threat from terrorism remains severe and given the current levels of paramilitary activity and intimidation, the Government, supported by the continued work of the multidisciplinary working group, are right to continue with the provisions. I note that, following the consultations, nine respondents agreed with the need to extend the provisions and two were against.
There can never be any excuse for terrorism or murder in Northern Ireland. Any such acts have to be utterly and roundly condemned. The shooting of John Caldwell was horrendous and devastating for him and his family. As the noble Baroness, Lady Ritchie, said, there has been an escalation in other incidents—perhaps lower in profile but none the less deeply worrying. I add my voice to the relief—congratulations is perhaps too strong a word—that John Caldwell is now making a full recovery. I wish him and his family well in that continued recovery.
As others have said, on these Benches we profoundly believe in the right to trial by jury. We must work to find practical solutions to manage the risk of juror intimidation and robust juror protection measures.
In conclusion, like others, I very much hope that this is the last time we need to see an extension of these provisions. Let us hope that by the time of the next revision, the Executive and the Assembly are once again fully functioning and that the security situation in Northern Ireland is very much improved.
Lord Murphy of Torfaen (Lab)
My Lords, I agree with everything that has been said, but it is still a grave and terrible thing to take away the right of a citizen of the United Kingdom to have a trial by jury, which goes back many centuries. Of course, I understand why this occurred. Anyone who, like me, has been watching that wonderful series about the recent Troubles, “Once Upon a Time in Northern Ireland” on BBC Northern Ireland, will understand why you could not avoid jurors being intimated by paramilitaries from both sides if they took part in their legal duty.
But times have changed. Over the last 25 years, roughly 160 people have been killed because of terrorist activity, compared with 3,500 before 1998. That is an enormous change. Many people forget that the Good Friday agreement also dealt with the criminal justice system in Northern Ireland and changed it to such an extent that it became acceptable to all communities in Northern Ireland. That is why, in 2007 there was a major change to ensure that only the smallest number of cases are to be dealt with simply by judges and not by juries. No one wants that to continue in our democratic society—of course we do not.
The only thing that needs to be reflected on—it comes out in the consultation document that the Government produced—is that there are still difficulties. When I looked at the figures it struck me that hundreds of families are still made homeless because of sectarianism in Northern Ireland. Hundreds of people are still attacked and injured because of paramilitary activity in Northern Ireland. Tragically, there are still people killed because of that. While those circumstances continue, it is necessary for this legislation to be continued for a further two years.
I hope the Minister will go back and reflect on what the Committee has said about reviewing the situation with non-jury trials over the next two years. I know there is a working party. I hope it actually operates and that the next time, if we are spared, we come to renew this legislation, we might not have to do so, but at the moment, we do.
I conclude on one other factor. Political instability is the cousin of political violence—a distant cousin, but it is there. The more the Government concentrate their effort on trying to ensure that we get political stability in Northern Ireland by constantly talking to the political parties there and to others concerned, the better, so that when we return after the recess, perhaps—who knows?—the institutions will be restored.
Lord Caine (Con)
My Lords, I am very grateful to noble Lords who participated in this short debate this afternoon, and I thank them for the support— reluctant, in some cases—that they have given to the order before the Committee. I share the frustration of noble Lords in having to bring this order back for an eighth time since 2007, when the Justice and Security (Northern Ireland) Act was passed by the Government of which the noble Lord, Lord Murphy of Torfaen, was a distinguished member. We all share the aspiration that this will be the last time that we have to do it, but the reality of the situation in Northern Ireland as we find it today is that there remains a significant risk of intimidation of jurors and witnesses, and therefore I am afraid there is no alternative at present.
The noble Baroness, Lady Ritchie of Downpatrick, referred to the grip of paramilitaries in communities across Northern Ireland, and I share her anger that, nearly 29 years after the first ceasefires in 1994, paramilitaries continue to operate within the community in this way. There was never any justification for them in the first place, and there is no justification for them today. As she knows, I was involved in the fresh start agreement in 2015, when we looked at this issue very closely and, out of that, there is the Tackling Paramilitarism task force within the Northern Ireland Executive, to which we as a Government are currently contributing £8 million a year in match funding, so we take these matters extremely seriously.
The noble Baroness asked me about the figures for 2022 for the number of cases that were tried in non-jury courts. The latest figures I have are those I read out in my opening speech, for 2021. Of course, as soon as the latest figures are available, I undertake to draw them to her attention.
Slightly at a tangent from the order, the noble Baroness asked me about the legacy Bill and when the amendments to that Bill on Report will be available. I can say only that I hope to be in a position to publish them very shortly, and in advance of the usual timeframe for tabling government amendments on Report. If she can contain her excitement for now, I am sure she will not have very long to wait. We go to Report on the Bill on 21 and 26 June.
A number of noble Lords referred to the security situation, and particularly the case of DCI John Caldwell. I join them in thanking God that he survived that vicious, murderous attack and was able to attend the garden party at Hillsborough a week last Wednesday, when he was presented to His Majesty the King. We all pray for his continued recovery and good health.
The noble Lord, Lord Browne of Belmont, made some interesting comments about the criminal justice system in Northern Ireland. I hardly need to remind him that the operation of the criminal justice system and any potential reform of it is a matter for the Department of Justice in Northern Ireland and the devolved Executive, if one were currently in existence. On the issue of funding, in the recent Budget, difficult as it has been, we allocated £1.2 billion to the Department of Justice, and it is for the department to allocate its resources accordingly.
International Criminal Police Organisation (Immunities and Privileges) Order 2023
(11 months, 1 week ago)
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Lord Goldsmith of Richmond Park
That the Grand Committee do consider the International Criminal Police Organisation (Immunities and Privileges) Order 2023.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)
My Lords, this instrument was laid before Parliament on 20 April in accordance with Section 10(1) of the International Organisations Act 1968. It is subject to the affirmative procedure and will be made once it is approved by both Houses. The issue was brought to the House of Commons Committee on Wednesday 17 May and was passed unanimously.
The primary purpose of the order is to provide the International Criminal Police Organization, more commonly known as Interpol, with the status of an international organisation in the UK, under the International Organisations Act. This is a prerequisite for the UK to host the annual Interpol general assembly in 2024. Importantly, it will also enable Interpol to function effectively in the UK in the longer term, including by providing it with legal personality in this country.
The Government therefore consider these privileges and immunities both necessary and appropriate to deliver on the short and longer-term interests and commitments that the UK has towards Interpol. The privileges and immunities conferred enable Interpol staff and its representatives from member countries to operate effectively in the UK. They will be afforded to officials attending statutory Interpol meetings and senior officials such as the Interpol secretary-general and executive committee members. They are within the scope of the International Organisations Act and in line with UK precedents.
All categories of individual are subject only to official Act immunities. The one exception to that is the secretary-general, who will be treated in accordance with the UK’s treatment of heads of diplomatic missions, namely receiving personal as well as official Act immunity. The provisions of the order cover: entry into the UK; customs provisions; immunity from legal process within the scope of official activities; inviolability of official documents and correspondence; taxation; inviolability of Interpol premises; statutory meetings; foreign currency exchange; functional immunity for officials; and an immunity waiver. As is standard for agreements of this kind, UK nationals and permanent residents are carved out of provisions regarding taxation and importation exemptions.
Interpol is a global law enforcement organisation whose objective is to facilitate transnational police co-operation in the fight against international crime. That mission is more important than ever when we consider how international crime has evolved since the UK became a member in 1928. Global travel, new technology and the ability of serious and organised crime gangs to exploit world events mean that we need to work across borders to keep our people safe. Interpol is key to that work and the UK remains committed to the organisation as it marks its centenary year. Our commitment is reflected in our plan to host the general assembly, alongside our day-to-day investment in Interpol through our people and expertise.
The general assembly represents a unique opportunity to demonstrate UK policing leadership on a global stage. During the event, police chiefs from around the world, alongside senior government officials, will gather to discuss emerging threats to global security, to set the direction for Interpol’s activities in the following year and to elect a new secretary-general, along with nine of the 13 new executive committee members.
The privileges and immunities granted by the order will enable Interpol’s membership to come together at its 2024 general assembly in the UK. It will also create a basis for closer working between Interpol and the UK Government and law enforcement agencies in future. I commend the order to the Committee.
Lord Collins of Highbury (Lab)
My Lords, I thank the Minister for introducing this statutory instrument. As he says, it has been considered in the other place. In fact, my honourable friend Catherine West made it absolutely clear that the Opposition support its introduction. She certainly echoed the Minister’s comments on the importance of Interpol’s role and activities, so I will not repeat those, but I have a number of specific questions that I want to put to the Minister.
The immunities and privileges contained in the instrument differ from those in similar regulations that I have considered in Grand Committee. One of those was the 2021 order on the Bank for International Settlements. Can the Minister explain the process to determine which immunities and privileges are given? Do they differ constantly for different organisations?
Also, during the debate on the instrument that gave similar immunities for COP 26, which I know the Minister is familiar with, I asked for assurances that there was no risk of hostile states’ representatives abusing privileges while in the UK. Can he confirm whether there has been any risk assessment of this possibility for the Interpol general assembly, which is going to take place in the United Kingdom?
The Explanatory Memorandum states:
“There was previously no law granting privileges and immunities to INTERPOL in the UK”.
Given that Interpol’s national central bureau is based in Manchester, is there a time lag? Why are we granting these immunities now? Surely there were people who would have benefited from such immunities in Manchester. Did the Government receive representations on this issue? The office in Manchester is responsible for working with and protecting the 14 overseas territories from a range of threats. Are the Government involving them in the arrangements for the general assembly?
Those are the few questions I have on this instrument. I reiterate the Opposition’s support for its introduction.
Lord Goldsmith of Richmond Park (Con)
I am grateful to the noble Lord for his contribution. I will do my best to answer his questions.
The privileges and immunities are a requirement, as the noble Lord knows, of the UK as a host of the general assembly in 2024. In agreeing the privileges and immunities treaty, Ministers considered this aspect and the associated risks, which he has just highlighted. All 195 members of Interpol will receive an invitation to the general assembly; that is the case for every Interpol general assembly and it is a requirement. The UK is required, as per the terms and conditions for hosting the general assembly, to honour those invitations. That is just a fact of hosting this conference or summit. Based on attendance at recent meetings of the Interpol general assembly, we are planning for the attendance of about 1,000 delegates, including the Interpol leadership. That said, and as outlined in the draft, not all of them will have full privileges and immunities.
On the issue that the noble Lord raised in relation to hostile states, the privileges and immunities granted are only those that are strictly necessary. They were negotiated according to functional needs, so delegates of member countries will be granted only the official acts immunity, which applies while they are carrying out their official activities in the UK. We are seeking to limit the size of national delegations permitted to the general assembly sessions to a model of five delegates and five alternates. They must also go through an accreditation process. We work continually to assess potential threats to the UK and will always take proportional action to mitigate risks where we identify them, as we are doing in this case. The immunities granted are official acts immunities only; they cover official Interpol activities and attendance at Interpol statutory meetings.
The noble Lord made a point about the Manchester HQ. My understanding is that it is the National Crime Agency, which is obviously a UK organisation, that is based in Manchester and not Interpol, so there is a crucial difference there.
What was the noble Lord’s first question?
Lord Collins of Highbury (Lab)
The differences between certain agencies and their immunities.
Lord Goldsmith of Richmond Park (Con)
I am afraid I will have to write to the noble Lord with a detailed answer on that, because I do not have that information to hand.
On Interpol itself as an organisation, the Government strongly support its efforts to ensure that systems are in place that protect individuals’ human rights, in line with Article 3 of Interpol’s constitution, which strictly forbids
“any intervention or activities of a political, military, religious or racial character”.
The Home Office continues to work with Interpol and the National Crime Agency, which acts as the UK’s national central bureau, to monitor the effectiveness of existing safeguards. We encourage Interpol to uphold international human rights obligations and would never hesitate to recommend further reforms to Interpol, if necessary.
I think I have answered the noble Lord’s questions, with the exception of one, on which I will have to get back to him in writing. I thank him again for his contribution today. I know the committee took a keen interest in the UK’s relationship with Interpol. In granting these privileges and immunities, we will be able to host the general assembly in 2024. We will be better placed to influence the organisation as a result, and better positioned to combat international criminality. I therefore trust that the Committee will support the order.
House of Lords
Driving Licences
(11 months, 1 week ago)
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Lord Naseby
To ask His Majesty’s Government what plans they have to introduce a graduated driving licence or other restrictions on newly qualified drivers.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, every death or serious injury on our roads is a tragedy, and we continue to work tirelessly to improve road safety for all users. Our broad approach to improving safety for new and novice drivers includes new technology and improving education while reinforcing vital road safety messages through our THINK! campaign. There are not any current plans to introduce driving licence restrictions on newly qualified drivers.
Lord Naseby (Con)
My Lords, I am greatly relieved to hear that Answer from my noble friend, because there are numerous rumours going round. I am sure young people will be greatly reassured. Nevertheless, is she aware of the other real problem that young people face today: that it is very difficult to get a test date when you are ready to take it? Is she aware that there are sellers out there using bots to hoover up at least a quarter of all the exam slots and reselling them to learners desperate to take their test? Furthermore, there appear to be dozens of websites offering to find learners earlier booking slots for a fee as high as £300. Can my noble friend look closely at this abuse of the situation and take the appropriate action?
Baroness Vere of Norbiton (Con)
I thank my noble friend for raising that. When I was Roads Minister until fairly recently, I worked very closely with DVSA to ensure that those bots cannot get access to the booking system. I will take his comments back and ensure that DVSA is doing all it can to make sure that those slots are not being used by other people. At the moment, there are about half a million people already booked into slots, and there are about 44,000 slots available in the next 24 weeks. The key to all this—it loops back into the road safety element of this Question—is that we must ensure that drivers are ready to take their tests. At the moment, fewer than 50% pass, so the number one message for learner drivers must be: be ready and then you will be able to pass your test and drive with confidence.
Lord Berkeley (Lab)
My Lords, if it takes up to a year after you have applied for a test to get one, it is not surprising that people apply early, because they will have to practise driving in the long period before they get to the test. Can the Minister confirm that the only way to get a test quickly is if you are rich and can afford a couple of hundred quid to bribe one of these middle people?
Baroness Vere of Norbiton (Con)
I am certainly not going to confirm that, because, as I have said, I have worked closely with DVSA to ensure that we limit that as far as possible. Indeed, I do not believe that the reselling of tests is a huge problem. Again, working with DVSA, we have created over 900,000 more slots—37,000 per month—to try to get as many people through as possible. As I have said, if people are better prepared, they will pass first time and will not need a secondary test.
Lord Cormack (Con)
Would my noble friend accept that road safety does not depend just upon drivers? Would she consider recommending to the Government, following the example of Paris, a ban on these wretched electric scooters?
Baroness Vere of Norbiton (Con)
I agree with my noble friend that road safety does not only require the safety of drivers. Indeed, that is why the Government adopt the safe system approach, which looks at drivers, vehicles on the road and the road itself. The Government are, of course, looking at e-scooter safety. We are analysing the evidence and will come forward with further proposals soon.
Lord Trefgarne (Con)
My Lords, are there any plans to restrict older people in this particular regard, or can we go on driving for ever?
Baroness Vere of Norbiton (Con)
We have no current plans to restrict anybody on the basis of age. However, as my noble friend will agree, sometimes some people will feel that they are no longer able to drive, or their doctor may recommend that they should no longer drive. In that case, one is legally required to get in touch with the DVLA and have one’s licence revoked.
Baroness Randerson (LD)
My Lords, every year over 400 young people, predominantly male, are killed or seriously injured on our roads. To go back to the beginning of the Question, probationary periods are common across the world for new drivers. Brake, the Parliamentary Advisory Council for Transport Safety and the insurers themselves support probationary periods with some restrictions. In the UK, we use them for motorcycles and large vehicles, so why are we not looking at using them for car drivers?
Baroness Vere of Norbiton (Con)
At the moment, the Government are undertaking an enormous research project in this area because we feel that we need the evidence base. If one looks across all the different countries where they have some sort of limits on licensing, there is no one size fits all; some countries put limits on before driving test are taken in terms of the amount of time one has to learn, while other countries decide to place certain restrictions post the test. We are doing a research project called Driver2020 and are investing £2 million in it; it kicked off in 2019 and involves 28,000 new and novice drivers. We are testing five different interventions to find out what we think might work in the future.
Lord Grocott (Lab)
My Lords, the Minister mentioned age. I am sure I am right in saying that a big proportion of people taking the test are age 17, 18 and 19, and many of them will need a driving licence to find employment, or at least it will be very helpful to them when they have one. What alarms me, among other things, about this long waiting list—the Minister has already told us that more than half of the people taking tests have to do it twice at least—is just how much the average cost is to a 17, 18 or 19 year-old, with top-up lessons if it is a prolonged period waiting for a test. Just how much does it cost? It is really alarming if there is a barrier to people simply on the basis of not being able to afford to do it.
Baroness Vere of Norbiton (Con)
I accept that there is a cost to driving, to car ownership and to ensuring that one is safe on the roads in respect of one’s responsibility to other people. We believe that the time taken to ensure that one is fully trained is important. That is why the second piece of research that we are doing is around a graduated learning scheme where we have asked the Driving Instructors Association to explore whether we can introduce a modular approach to learning. That will help all candidates go through the process and become safe drivers, and it may help them to minimise the costs as they learn the right skills at the right time.
Baroness O'Loan (CB)
My Lords, is the Minister aware that in Northern Ireland there is a system in which drivers who pass their tests are required to display restricted plates and are restricted to driving below 45 miles per hour? Is she also aware that the biggest barrier to young people getting into a car and driving is the cost of insurance, which is prohibitive?
Baroness Vere of Norbiton (Con)
I am aware that some form of graduated driving licence has been introduced in Northern Ireland. In Great Britain, we also have a probationary scheme that falls under the new drivers Act, whereby if any new driver gets six points within the first two years, they have their licence taken away and must take their test again. We are working with the industry on insurance. There may be something helpful around telematics in that regard. I do accept that insurance for young drivers is more expensive, and that is because they can often be riskier drivers.
Baroness Taylor of Stevenage (Lab)
My Lords, since 2018 learner drivers have been permitted to take motorway driving lessons with approved driving instructors, but few make use of this rule change. According to a recent AA survey, 83% of drivers say they have never seen a learner on the motorway. Has the department made an assessment of how many driving schools offer motorway lessons, and does the Minister believe that increasing the availability of these would better prepare learner drivers?
Baroness Vere of Norbiton (Con)
The noble Baroness raises a very important point, and that leads back into the graduated learning scheme that we are looking at to ensure that new drivers have the opportunity to try out all sorts of different schemes. We are also looking at one of the interventions from the Driver2020 research, which is a logbook that will record the time and type of driving, including motorway driving. But there are some parts of the country where there are no motorways, so I think it is really important that all driving instructors think about the types of roads they are taking their candidates on to ensure variety.
Lord Cromwell (CB)
Is the noble Baroness aware that a root cause of the difficulty of getting a test is that the examiners, who are public servants, are all leaving to get better-paid jobs elsewhere?
Baroness Vere of Norbiton (Con)
It is the case that there have been some issues regarding retention at DVSA. However, I would also say that DVSA is looking to recruit an extra 300 driving examiners. We are looking at all of this carefully to ensure we have the full cohort of driving examiners available.
NHS GP Surgeries: Purchase by US Companies
(11 months, 1 week ago)
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Lord Warner
To ask His Majesty’s Government, in the three years up to 31 March, how many GP surgeries providing NHS services have been purchased by private companies of which one of the controlling shareholders was a United States company; and whether they intend to take action with regard to such purchases.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
This information is not held centrally because local commissioners arrange appropriate services for their populations by contracting with providers. Commissioners do not normally request details of corporate structure. Our focus is on high-quality services and patient experiences, regardless of practice ownership. All GP contract holders and providers of NHS core primary medical services are subject to the same requirements, regulations and standards. We expect commissioners and regulators to take action if services are not meeting the reasonable needs of patients.
Lord Warner (CB)
My Lords, I am a little surprised by that particular Answer. I would have thought that, given the problems of shortages of GPs in the NHS, there might be a little more interest in the Department for Health and Social Care in finding out about this. Is the Minister aware of the scale of acquisition of GP practices that has been achieved with very little public transparency? Let me give him the example of Operose Health, which is a UK subsidiary of Centene Corporation, a major US health insurer, which now owns nearly 70 GP practices serving nearly 600,000 patients. I would have thought that the centre might want to take a little more interest in this, because what is very clear is that the APMS system is an offering that many corporate individuals can exploit to get a hold of very large numbers of GP practices—and, just for afters, Centene is in deep trouble in the United States.
Lord Markham (Con)
What the centre is most interested in is quality of the service; that is exactly what we do. As for Operose, which the noble Lord mentioned, 97% of its surgeries are rated by CQC as good or excellent. In the case of the one where there was a concern, CQC did a deep dive of the surgery and looked at the staff mixing, and that practice is now considered good. The key thing, I think all noble Lords will agree, is the quality of service, not ownership.
Baroness Manzoor (Con)
My Lords, as my noble friend said about ensuring the quality of services for users, since the inception of the NHS, GPs have been private practitioners and have invested money from their own pockets to improve their surgeries. What are the Government doing to ensure that there is equity and accessibility of good GP services to those who live in inner-city and deprived areas, and in rural areas?
Lord Markham (Con)
My noble friend is correct, of course. GPs have always been independent businesses, and that is the backbone of the service. We have managed to increase the number of GPs by 2000 since 2019, but we all accept that more needs to be done to attract them, especially to the key areas that my noble friend mentions. We have a £20,000 bonus in place to recruit GPs to those difficult areas and, most importantly, we have a record 4,000 GPs in training.
Lord Watts (Lab)
My Lords, is it not a national scandal that someone can purchase a building for £1 million, they can locate health services in there, they can get the NHS to pay the mortgage on that building and at the end of that period, that person owns that building? In other words, we have transferred £1 million from the taxpayer to an individual.
Lord Markham (Con)
I think it was the noble Lord opposite who introduced patient choice. That looked to the independent sector to increase supply, which is what we care most about. I do not believe that anyone should be fundamentally against who owns a business. What they should care most about is the supply of good-quality services.
Lord Allan of Hallam (LD)
My Lords, further to the Minister’s answers around quality, does he agree that there is a significant public interest in understanding how well different general practice ownership models perform for patients? In this context, can he confirm whether his department is carrying out any research into patient satisfaction and outcomes by ownership type, using sources such as the general practice patient survey and the OpenSAFELY trusted research environment for GP data?
Lord Markham (Con)
I am not aware of any correlation between the type of ownership and the quality of the services from it. If there is one, then we can look at that, but we are focusing resources on the areas where they make most difference, and the focus is: what is the performance of that clinic? That is what we should all care about. How are the doctors there performing in terms of appointment times and everything else? I will not put a false target on who owns it and the structure of it, because that is not relevant. What is relevant is the quality.
Baroness Bottomley of Nettlestone (Con)
Is it not the case that the former chief executive of the NHS brought some extremely valuable experience back from America, from UnitedHealth? I remember long ago in the distant past, when the Labour Party was last in power, that Kaiser Permanente was constantly being consulted. Surely it is an arrogance to have a xenophobic approach to where we take advice and where we learn from other people’s experiences?
Lord Markham (Con)
I totally agree with my noble friend. I like to think that we will take advice from whoever is best placed to give it, whether they are public sector, private sector, UK or international.
Lord Reid of Cardowan (Lab)
My Lords, I thank the Minister for referring to me in the context of patient choice. I am proud of that and would like to see more of it. The problem as regards GPs is that it is not just the right to choose but the ability to exercise that right that is prevented if every GP’s list of patients is so large that you cannot jump from one GP to another. The key to exercising the quality and the choice that the Minister quite correctly mentioned is to create more GPs. As long as we have a shortage of GPs, we will negate the choice of the patients.
Lord Markham (Con)
The noble Lord is absolutely correct that it is all about supply and the quality of that supply. That is why, again, I am pleased to say that we have a record number of GPs in training. We can learn from innovative measures. I have been looking at an advanced draft of the workforce plan. The number of doctors in the most advanced medical systems in the world—those of Japan and the US—is lower per head of population than here, but the number of nurses is higher. They have altered their staff mix to get the optimum performance, and we should be open to these innovative approaches to get the best output.
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Lord referred to the workforce plan. Can he assure me that, when published, it will be fully funded?
Lord Markham (Con)
This is absolutely the work that the Treasury is doing at the moment. Noble Lords have asked, many a time, when it is coming out. I think people will understand that part of the delay is making sure that, when the plan does come out, it really does work.
Lord Patel (CB)
My Lords, what does the Minister think is the main reason that general practitioners might be leaving the NHS to work in the private sector?
Lord Markham (Con)
My understanding is that it is a range of issues, clearly including workload, pay and conditions. We are trying to address those; I think the change in the pensions rule has been generally welcomed in terms of encouraging more doctors to stay on in place. But it is a range of those measures—again, all things we are hopefully addressing through the new training and skills programmes, and the long-term workforce plan.
Lord Forsyth of Drumlean (Con)
My Lords, could my noble friend take the Question from the noble Lord, Lord Warner, a little more seriously? If we look at what has happened to vets, for example, private equity has bought up veterinary practices and prices have gone through the roof in order to pay for the funding costs. If this were to happen with general practice, I think that would be a very retrograde step.
Lord Markham (Con)
My understanding on this is that actually it is not a massively profitable area at the moment. The biggest provider in this area, Babylon Health, as we all know, did not manage to make it work. So, while I think we all understand my noble friend’s concerns, I do not believe that this is the case with the GP funding model.
Baroness Merron (Lab)
My Lords, research has shown that GP surgeries owned by some private limited companies have been offering a lower level of care, with unqualified staff seeing patients. So, in view of the Minister’s comments on quality, how much of a concern is this for the Government? On top of this, with some 4,700 GPs being cut over the last decade, cuts to training places and the many years that it takes to train a GP, what response will the Minister make to the latest GP patient survey, which reports that patients are now ever less likely to be able to see a GP?
Lord Markham (Con)
Clearly, we have our targets in terms of making sure that people can see a GP. I am glad to say that 70% of appointments are now face to face, and we are on target to hit our 50 million increase in appointments. So it is good to see that we are getting that done. Do we need to do more? Clearly, there is ever-increasing demand from the demographics of the situation, so we need to increase supply through additional training places, as I said.
Sodium Valproate
(11 months, 1 week ago)
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Baroness Cumberlege
To ask His Majesty’s Government what further steps they are taking to protect patients and families from the harmful effects of sodium valproate taken during pregnancy, and what is their timetable for doing so.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
Our aim is to reduce and finally eliminate the harms of valproate in pregnancy. In December, we announced additional measures to protect women and families through a requirement for two prescribers, further warnings in the valproate product information, and improved educational materials. No woman of childbearing potential should receive valproate unless no other treatment is effective or tolerated. Implementation plans are now being finalised, with engagement with healthcare and patient organisations.
Baroness Cumberlege (Con)
My Lords, I thank my noble friend for that Answer. It goes some way, I think, to reassure many of us who have been very concerned about sodium valproate being given to pregnant women, and the result that that has had. I am seeking to ensure that, with the plain boxes which contain sodium valproate, those tablets are not actually opened without a clear warning, so that people know exactly what is contained in those boxes and the harmful effects it could have on their babies. Can the Minister tell me what is actually happening to those plain boxes, because sodium valproate should not be prescribed without a really clear warning about what it could do to babies and women?
Lord Markham (Con)
First, I thank my noble friend for all the vital work that she has done in this space. She is absolutely correct. The key thing is that there are circumstances where sodium valproate is the only effective treatment for bipolar and epilepsy-type disease problems. However, we have to ensure that if people are taking it, they are going into it with their eyes completely open, so that they fully understand the risks. That is absolutely to do with the packaging. It is also about making sure that if that packaging is split up there are leaflets in every part, and that everyone signs a consent form at least once a year, fully acknowledging the risks. Thereby, if people take the treatment, they are doing so with their eyes fully open.
Baroness Stuart of Edgbaston (CB)
My Lords, last year the Scottish Government set up an advisory group on the use of valproates. To what extent does the Minister work with the devolved Administrations to make sure that there are clear guidelines on this subject across the four nations?
Lord Markham (Con)
The regulatory authorities absolutely work closely here. It is my understanding that it is the intent of all the devolved Administrations to make sure that while there are circumstances in which this drug might be the correct treatment, as I mentioned, it is used only when everything else has been tried—and, in our case, in England—that two independent specialists will be required to prescribe it.
Baroness Wheeler (Lab)
My Lords, ensuring that patients’ decisions are based on informed consent and shared decision-making with their doctors and pharmacists is vital, especially in relation to the exception to ensuring that valproate is always dispensed in its original packaging. What steps are the Government taking to raise awareness among the health professionals involved and ensure that there is a properly joined-up approach to the advice and treatment given to the patient? How is data collection on this issue being improved, so that the effects of the safety measures and issues can be fully identified and addressed?
Lord Markham (Con)
The noble Baroness is correct. In terms of data, it is vital: first, that we have a register of all the people who are taking valproate so that we can be sure that the information is there; secondly, that we then keep a record of where patients have signed the annual acceptance; and, thirdly, that we are gaining data on testing. The latest suggestion is that we should also be looking at males taking valproate because there is evidence that it can, through their sperm, cause difficulties in pregnancies. On all those factors, data is central and we should make sure we collect it.
Lord Patel (CB)
My Lords, we have known for decades that sodium valproate, particularly when given in early pregnancy, causes 1% of babies to be born with deformity and as many as 10% to be born with learning disabilities. Despite the guidance issued two years ago, last year 250 babies were born to mothers taking high doses of sodium valproate. Does the Minister agree that we need to make the guidance much stricter, particularly about the appropriate contraception to use, and that when advising women who might be planning a pregnancy, sodium valproate should stop being prescribed for them?
Lord Markham (Con)
The noble Lord is absolutely correct. Everyone taking sodium valproate who is of childbearing age should be on a pregnancy prevention programme to make sure that those sorts of incidents do not happen. It is vital, when it is necessary for people to take it, that they really understand the risks and do everything to avoid pregnancy.
Baroness Bottomley of Nettlestone (Con)
My Lords, mention has been made of the reduction in the prescription of sodium valproate but can my noble friend clarify that with a few more figures? In the report by my distinguished noble friend, which has done so much, mention was made of a redress scheme. In December the Select Committee tasked Dr Henrietta Hughes, the Patient Safety Commissioner, to bring forward proposals of what that might look like. Can he inform the House of progress there?
Lord Markham (Con)
I thank my noble friend. Yes, the number of cases of people of childbearing age—this is a key criterion—taking sodium valproate has reduced by 33% over the past five years. The number of pregnancies has reduced by 73% but clearly that is not zero so more work needs to be done. I was speaking to Minister Caulfield this morning about the Patient Safety Commissioner. We are expecting her report shortly and from there we hope and believe that there will be a lot more we can do on regulation.
Baroness Bennett of Manor Castle (GP)
My Lords, I refer to the work of Dr Hughes, the Patient Safety Commissioner, and the initial Question from the noble Baroness, Lady Cumberlege, which referred to where sodium valproate is prescribed in different numbers of pills from the number that come in a packet, so the excess pills are taken by the pharmacist and put into plain paper packaging. The Patient Safety Commissioner has identified this as a real issue because sodium valproate must not be dispensed without the appropriate safety labels, but that is clearly happening. What are the Government doing to stop it?
Lord Markham (Con)
The noble Baroness is correct. First, the MHRA is working on guidelines which say that you must always dispense in the original packaging, come what may. In the meantime, secondly, all pharmacists should absolutely be putting leaflets in, whatever the packaging. Thirdly, everyone should have to sign an acceptance form so that they are going into this with their eyes open and understand the risks. Every year they are supposed to renew that acceptance form to make sure that, while it may be necessary in some cases, everyone goes into it with their eyes open to the risks.
Baroness Brinton (LD)
My Lords, in 2020 after the publication of the report by the noble Baroness, Lady Cumberlege, we had many debates in your Lordships’ House about the role of and the support for the Patient Safety Commissioner. She had not heard what her budget for the current financial year was at the beginning of May and said that, even leaving that aside, she would not be able to do her job properly. To follow the course of how patients with sodium valproate are supported and treated, she will need that resource. Will the Government review the resource needed for her to do this and many other tasks in her important role?
Lord Markham (Con)
My understanding from speaking to Minister Caulfield on exactly this subject this morning is that she has recently spoken to the Patient Safety Commissioner, who is happy that she has the resource that she now requires to do this part of the study.
Baroness Hollins (CB)
My Lords, I note that the damage caused by sodium valproate happens during the first trimester, when many women do not realise they are pregnant for a while, and, despite attempts to plan pregnancy, many pregnancies are unplanned. It is one thing to say that it is the woman’s knowledge, understanding and consent, but what about the long-term care of children who are born with damage caused by sodium valproate? What measures are being taken to attend particularly to the needs of this group?
Lord Markham (Con)
The noble Baroness is correct that unfortunately there will always be some cases. Dr Charlie Fairhurst has been advising the Government on how best to create the care pathways so we can make sure that we are catering for the children in this scenario. How it manifests itself, as I am sure the noble Baroness understands, is in things such as increased autism or cystic fibrosis, for which we have existing patient pathways for treatment. We must make sure that these children can get quick and easy access to those treatment pathways.
Cancer Referral Targets
(11 months, 1 week ago)
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Baroness Merron
To ask His Majesty’s Government what steps they are taking to ensure that NHS trusts in England meet their target for cancer patients to be treated within two months of an urgent GP referral.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
My Lords, NHS England continues to actively support those trusts requiring the greatest help to cut cancer waiting lists. This work is backed by funding of more than £8 billion from 2022-23 to 2024-25 to help drive up and protect elective activity, including for cancer. To increase capacity, we are investing in up to 160 community diagnostic centres—CDCs. Within CDCs, we are prioritising cancer pathways to help reduce the time from patient presentation to diagnosis and treatment.
Baroness Merron (Lab)
My Lords, nearly 90% of cancer patients in 2010 received their first treatment within two months of urgent referral, which exceeded the operational standard, something the Government have not achieved since 2014, while last year fewer than 65% of cancer patients were treated within this standard. With earlier intervention being key to saving lives, what is the Government’s estimate of how many lives are lost each year due to failure to meet this agreed standard? What is the impact on survival rates of continued delays to a workforce plan promised long before the pandemic and still being reported as not having been signed off by the Treasury?
Lord Markham (Con)
The noble Baroness is correct about early diagnosis. That is why we have invested in 160 CDCs, which will be primarily focused on cancer, and why there are 11,000 more staff than in 2010, a 50% increase, as well as 3,000 more consultants, a 63% increase. We are seeing more supply than ever but at the same time, given Covid and the pent-up demand caused by that, we are also seeing more than demand than ever. The major expansion of supply is focused on making sure that we quickly detect those people.
Lord Kamall (Con)
My noble friend the Minister mentioned Covid. One thing we learned from Covid was the importance of testing at home and rolling out home testing. A few weeks ago, I received a letter from the NHS asking me to provide a sample to test for a certain cancer—a test given to people my age. I thought that that was very interesting. How much more rollout of home testing are the Government intending to do, so that we can catch these cancers early—not just colon cancer but a whole range of cancers?
Lord Markham (Con)
I am not exactly familiar with the test that my noble friend might have taken but many of us will have heard about the early promise shown by the GRAIL programme. It is a simple blood test and, right now, has a two-thirds success rate for early detection. Those are early indicators, but early diagnosis and innovative approaches such as the GRAIL blood test are important.
Lord Patel (CB)
My Lords, I interrupt to say that, while the new test shows promise, it is nowhere near perfection. The sensitivity of the test is extremely low and false positive rates are high. This is cell-free DNA testing, including machine learning. It may be the promise of five years to come that we detect cancers at an early stage, which would be the holy grail, but we must not hype the test at this point and raise false hope.
Lord Markham (Con)
The noble Lord is absolutely correct that we always need to keep these things in balance. What I was trying to express was that we have an opportunity to innovate in this space. We have another innovation in our targeted lung cancer programme, which has now been rolled out to 43 sites. In 2019, 50% of such cancers were not detected until stage 4. Now, through mobile delivery of services to these sites, we are detecting 60% of such cancers at stage 1. Those are the sort of innovations for which we have very solid data, and they do show promise for the future.
Lord Allan of Hallam (LD)
My Lords, national waiting times for cancer treatment have fallen way off target, as the noble Baroness, Lady Merron, set out in her Question, but these national numbers mask significant regional variations. In March, they ranged from 45% of referrals within the target time in Birmingham and Solihull to 80% within target in Kent and Medway. How does the Minister account for such significant variations and what are the Government doing to level up those integrated care board areas that are falling furthest below the targets?
Lord Markham (Con)
That is exactly the example I was giving when I mentioned lung cancer targets, where mobile devices are being used. Interestingly, the most deprived areas have been targeted because they are often areas of high smoking, and these are the areas where they have managed to get screening times down the most. We have the opportunity to put CDCs in the areas of most need. We all agree that there is unprecedented demand and that we have to expand supply; there is no other way to meet that demand but to expand supply.
Lord Rooker (Lab)
Having gone through treatment myself in the last few years—successfully so far—I want to ask the Minister whether anybody is measuring the growth of mental illness among people who know that they need treatment but where it is constantly delayed. The pressure on those people and their families is enormous. Is there any measure of extra mental illness caused by this delay?
Lord Markham (Con)
The noble Lord is correct. I have a friend who is in that situation. We all understand the stress of waiting and what it can cause. I will come back to the noble Lord on the research into the impact on mental health. I absolutely accept that a lot more needs to be done, but one of the main things is the target of diagnosis within 28 days, which we are now hitting 75% of the time. That gives people peace of mind quickly, particularly as 94% of those people end up being negative—only 6% are positive. Peace of mind is crucial here.
Lord Warner (CB)
My Lords, is the Minister aware that in 2017 this House, under the distinguished leadership of the noble Lord, Lord Patel, produced a report which said that the sustainability of the NHS was in doubt unless there was a workforce plan? Would he like to remind his friend the Chancellor, who was the Health Secretary at the time, of that report?
Lord Markham (Con)
I know that the Chancellor is very aware of it, and of course it was the Chancellor who in the autumn kicked off that this workforce plan should be done. The Chancellor is quite rightly very involved in making sure we get the right answer now.
Lord Hannan of Kingsclere (Con)
My Lords, during the first lockdown we had some 40,000 fewer cancer diagnoses than we would have expected during a normal period. Cancer develops slowly and we cannot yet calculate the lethality, but will my noble friend the Minister consider, before we ever contemplate another policy of mass house arrest, the long-term consequences for health of people being confined to home? It may be, as we see the excess mortality figures coming in from around the world, that lockdowns ended up killing more people than they saved.
Lord Markham (Con)
My noble friend is correct that there were knock-on implications of lockdown, cancer detection rates being one of them. Noble Lords have heard me speak of Chris Whitty’s concern about heart disease because those check-ups were missed, and mental health is another area. Clearly, these are some of the things we are hoping to learn from the Covid inquiry, so that we know the impact of lockdowns, not just on restricting Covid but more widely, on the population as a whole.
Lord Winston (Lab)
My Lords, have the Government made an assessment of the cost of false positive tests in this kind of screening and the cost to patients?
Lord Markham (Con)
When the noble Lord says this kind of screening, I am not quite sure which type of screening he is referring to.
Lord Markham (Con)
I did not know whether the noble Lord was referring to GRAIL and the comment from the noble Lord, Lord Patel, about false positives. This question probably deserves a detailed reply but, as with any test, it is not about just specificity but sensitivity, which is key, so that the number of false positives is minimised. I will provide a detailed reply.
Baroness McIntosh of Hudnall (Lab)
My Lords, the noble Lord has referred at several points in this discussion to early diagnosis. He will be aware that cancer very often develops later in life and that the older you are the greater the risk is. Yet older people are excluded from routine screening tests past a certain age. Can he explain the thinking behind that?
Lord Markham (Con)
It is about trying to make sure that we are screening those of highest risk, given the impact on quality of life, and catching it early. I know that is very specifically the thinking around it. Beyond this, while we know the challenge around waiting lists, we have increased the supply through a 15% increase in activity. We are supplying more than ever, but we know that a lot more needs to be done to meet the demand.
Illegal Migration Bill
Monday 5th June 2023
(11 months, 1 week ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-III Third marshalled list for Committee - (5 Jun 2023)
Lord Coaker
“Negotiating objective: migration removal agreements(1) It must be a negotiating objective of His Majesty’s Government to negotiate with relevant States formal legally binding agreements to facilitate removals required under section 2.(2) Relevant international partners include (but are not limited to) the States listed in section 57.(3) Within the period of one month beginning with the day on which this Act is passed, and every three months thereafter, the Secretary of State must—(a) publish a report outlining the status of negotiations with relevant States on the establishment of formal legally binding agreements to facilitate removals, and(b) lay the report before both Houses of Parliament.”Member’s explanatory statement
This new Clause would require the Government to seek formal return agreements with other states, including Albania and EU member states, and to report regularly to Parliament on the status of those negotiations.
Lord Coaker (Lab)
My Lords, the Minister—the noble Lord, Lord Murray—and the Committee will know straightaway that this is obviously a probing amendment, but it is none the less significant, notwithstanding the Prime Minister’s visit to Dover this morning and some of the comments and announcements made there. It is particularly important, because some of our objections to the Bill deal with not only some of the principles but some of the practicalities and what we regard as the unworkable measures within it. With this amendment, I hope to concentrate more on the practicalities and on how some of this is simply unworkable, or certainly needs more justification from the Minister. Groups of amendments that we may debate later today or on another day deal with many of the principles underlying criteria for returns and those who are detained before they are returned. But, through Amendment 13 in particular, I hope we can deal with how all this will work.
I will cite a number of facts, and I am particularly keen for the Minister to understand that I am using Home Office figures. It is always helpful to use the Government’s figures to highlight some of the points because, presumably, they do not question their own figures, although sometimes I wonder whether that is the case. To help the Minister, I say that these are the latest figures—I know that the noble Lord, Lord Sharpe, is always keen for us to use the latest figures—from 25 May 2023. If the Minister has any from after that, some of what I will say clearly may not be as accurate as it might be—but it is important to confirm the context within which we debate the returns agreements.
The number of asylum seekers awaiting a decision is now 172,758, and it continues to rise. The number of asylum seekers waiting for more than six months for a decision is 128,812. Of these, 78,954 are legacy cases. On small boats, starting with 2022—I know that the Prime Minister was keen to talk about 2023—can the Minister explain to the Committee how on earth the Government have got themselves into a situation where we need an illegal migrants Bill when, of the 45,000 people who crossed in small boats last year, only 1% have been processed? How on earth is that a policy? It does not matter what policy you have if the systems do not work, or only process that amount. How on earth are we supposed to get on top of this problem, which we all want to deal with?
So far, 7,610 people have come across in small boats this year. Where are the 4,657 people who have come across since 7 March detained? What is the Government’s presumption about where they will be returned to? Let us start with the small boats that have arrived since 7 March. We will come to discuss the wider issues much more, but I hope that noble Lords can see some of the context.
As I have already asked, if all the people who have arrived irregularly since 7 March are to be removed, where will they be removed to? Where are they staying now, and how much is it costing? Can the Minister confirm the House of Commons Library figure that, as of June 2022, there were 38,900 people waiting for removal? That number is before we even get to the figures on illegal boats; we cannot even deport or remove people whose asylum claims were presumably refused years ago. What has happened to them and where are they? Do the Government know? What is the actual figure if that figure is wrong? Where are they being returned to? Are we ignoring them, or are they being returned? Do we have returns agreements for them?
Can the Minister comment on the interesting dilemma of who will be returned first: the people who have come irregularly since 7 March or the people whose asylum claims were refused and are subject to deportation before this legislation? Presumably, some of those people have been waiting for detention for a considerable period of time.
Can the Minister say, in practical terms, how he expects the returns agreements to cope? I reassure him, again, that I am citing the Government’s 25 May document. How will the Government cope with the returns agreements, given that the number of enforced returns in 2022 was 46% lower than in 2019? Significantly, of those enforced returns, many were EU nationals or foreign national prisoners. Can the Minister also confirm the government figures that say that the number of case workers dealing with asylum claims fell between January and May 2023? As I have said, at the heart of my amendment are the huge numbers waiting to be returned already.
The Government are to detain all people arriving irregularly and then have agreements to return them, which are supposedly in place. Given the contentious figures we have seen in the media over the weekend, what is the Government’s planning figure for the numbers that they expect to detain? The Prime Minister can announce, in Dover, that there are two more barges coming, even though he has no idea where they are or what size they are. While I hope that the Minister can prove me wrong, why can the Prime Minister announce that without the Minister giving us the full detail, as we debate the Bill, as to where people will now be detained? More importantly, given that detainment is the first stage, where will they then be returned to? What is the Government’s estimate of the total cost of those detain and return figures? Is the figure of up to £6 billion over the next two years wrong or not?
According to the briefing that was helpfully published for us by the House of Lords Library,
“Researchers at UK in a Changing Europe have argued that ‘the most significant change’ to asylum policy recently occurred when the UK left the EU”—
which we did. It continues:
“This meant the UK was no longer part of the Dublin Regulation, also referred to as Dublin III. This EU legislation sets out which member state handles the examination of an asylum application, often the country where an asylum seeker first arrives. No agreement between the EU and UK on asylum policy was made when the UK left Dublin III”.
The significant sentence from that briefing is that no returns agreements have since been made, although the UK says that it intends to agree bilateral arrangements with EU member states for the return of asylum seekers—unless Albania counts, although it is not a member of the EU. Can the Minister tell us how that is going? Can he list for us what those returns agreements are, and how many returns each of those various EU countries will get?
This morning, the Prime Minister himself made much of the Anglo-French agreement, saying that it was a great step forward that would no doubt help us. He said that progress has been made, and, because we obviously do not want people crossing the channel in that way, arrangements were made between France and the UK. Unfortunately, as the House of Lords briefing points out:
“A further agreement with France, in which the UK agreed to fund enforcement measures, was signed on 10 March 2023. However, this agreement does not enable the UK to return asylum seekers to France”.
Can the Minister say whether there are ongoing negotiations on that, and where have they got to?
Lord German (LD)
My Lords, to help the Minister with the questions he has just been asked, can I add a quite straightforward and simple one? Is it the Government’s intention that return and removal agreements will be made with every country in Schedule 1 to the Bill to which they are seeking to remove people?
Lord Kerr of Kinlochard (CB)
My question is even more simple: where is the impact assessment? I think the purpose of impact assessments is to inform the legislative decision. We hear that there will be an impact assessment and it will be produced shortly, but it seems unlikely to be produced while this Bill is being considered in this House. I think that is rather insulting, particularly as the Government rest their intellectual case on the deterrent effect. They say that the numbers will go down as word gets about of how people are to be treated, what “inadmissibility” means and how it is to be applied.
I am strongly against that on legal grounds—I think we should honour our international commitments—and humanitarian grounds, but it is impossible just to consider this argument on its merits if we cannot see the assumptions underlying the Government’s judgment of the impact. The questions from the noble Lord, Lord Coaker, are all extremely apposite and I look forward to the answers to them, but it seems to me that in relation to the deterrent effect, the impact assessment—wherever it is, whenever we will see it—will have to consider why people leave their home country and seek asylum far away. Why are they coming here? Will they be deterred by talk of us getting more brutal? We are going to get more brutal if we pass this Bill, but we are not going to get half as brutal as the conditions of the countries from which they are fleeing—75% of those seeking asylum in this country are found by the processes to have a well-founded fear of death or persecution back home.
Talk of pull factors is all nonsense: it is all about push factors. They are fleeing from horrors, from famine, from massacre, from murder and from war. It is difficult to see the deterrent factor as likely to be to be large, given the scale of the factors that are bringing about the flow. The impact assessment may prove me wrong. Certainly, the Government should, if they have the courage of their convictions, produce the evidence and the assumptions that underlie these convictions, and they should do it before we finish considering the Bill.
Baroness Hamwee (LD)
My Lords, does the noble Lord agree that one of the underlying provisions that we should know about is the safe and legal routes that we are told will deal with any number of people? Situations change so fast. I am not sure we had quite started the Bill when Sudan flared up as it did. There is an awful lot we need to know in order to know how the Bill will work.
Lord Kerr of Kinlochard (CB)
I am grateful to the noble Baroness; I should have mentioned the point myself. I am concerned that the Government keep saying that the UNHCR runs safe and legal routes and that it is perfectly possible for someone in Iraq, Syria or Afghanistan to register with UNHCR, which will see them right. It is simply not true. UNHCR has again said so, formally and on the record. It does not run a clearing house. It does not run a general scheme open to all. It is able to cope with approximately, it says, 1% of the demand.
It is the case that if you are a persecuted young woman in Iran, there is no safe and legal route by which you can come to this country. If you are fleeing in Sudan from the war that the noble Baroness, Lady Hamwee, referred to, there is no safe and legal route to the United Kingdom. UNHCR does not stand up the Government’s story that it is the fallback, the clearing house, that we can always turn to. It says it cannot do that. Obviously, it cannot do that; it is not resourced to do that. I agree that the impact assessment, in considering the deterrent effect on what the Government call illegal immigration, must address the question of how people from war-torn, famine-struck, civil war countries can achieve a legal route.
Baroness Chakrabarti (Lab)
My Lords, it is an absolute privilege to follow such a distinguished former Permanent Secretary to the Foreign department. To return to my noble friend’s amendment, it may seem a little counterintuitive or surprising for me to welcome a probing amendment about removal and about a duty to negotiate removal agreements, but I do. The reason is that there is actually a greater and stronger link between the principles that we have been discussing and the practice that my noble friend is considering here, because in this neck of the woods, in particular, the two go together.
I say, with respect to the Committee, that it would have been wise for the Government to have thought about a duty to negotiate removal agreements before they proposed to legislate for a duty to remove. The sin is to have duties to remove with nowhere to remove people to, and duties to detain with no ability to remove, because that leads to indefinite detention.
There were all the arguments that we had on the last illegal Bill, and the arguments that we will have again about whether refugees and asylum seekers should be allowed to work after a period of time. People argued about pull factors, and some of us said that there were push factors, not pull factors. But if people’s claims were being considered quickly, including of those who did not qualify for asylum—who were genuinely illegal migrants and never qualified for asylum—some of us would have no problem with the principle or practice of having a short period of arrest and detention for the purposes of facilitating a lawful removal.
My noble friend Lord Coaker has really hit the nail on the head. What is the practice here? If there is no practical agreement to remove people to whichever country they are from, and people are in practice irremovable, that is where the cruelty comes in. That is a cruelty towards people who are detained for lengthy periods, quite possibly at great public expense, in inappropriate accommodation; this could include accompanied or unaccompanied children not being housed or detained appropriately, not being educated, and so on. That is the sin—the terrible maladministration and lack of good practice, which is then translated into this culture war via more draconian legislation for a general election that will no doubt be sloganed, “Stop the boats”. We do not stop the boats, but we do not welcome the vulnerable people either, so we perpetrate this great swindle on the British people. We toxify a debate that needs to be handled much more temperately, and we do not achieve anything very much at all.
The final link between principle and practice in this area is that, in this amendment, we are talking about a duty on the Secretary of State to negotiate these practical removal agreements for those people who do not meet the tests and do not qualify in the end as refugees. In this probing amendment we are talking about that duty and asking whether it does not need to be a duty because the Secretary of State genuinely wants to negotiate. To go back to what the noble Lord, Lord Patten, said before the break, whether that is the case or not, who will negotiate with us? We have heard some flummery from the Benches opposite about how international law is not real law—“We have a dualist system and let me not give you a law lecture, but it’s not real law, it’s only international law”. If our word is not our bond, who will negotiate with us?
There is currently a contradiction at the heart of government between those who want to be leaders on the world stage, with all the challenges that have to be met internationally at the moment, and those who want a culture war. My understanding is that the Prime Minister is now saying not only that we are going to be part of the Council of Europe and honour our international commitments but that we are going to be the architects of new ones. London is apparently going to be at the heart of regulating artificial intelligence—this is where it is all going to happen. But why should anyone allow us that moral leadership on the world stage, if we will not honour international law?
I look forward to the answers to my noble friend’s questions about the moment when principle really does need to meet practice.
Lord Paddick (LD)
My Lords, perhaps the Minister can help us here. Is not it the case that, without removal agreements, the Bill is likely to make the current situation worse in terms of costs to the Exchequer? As the noble Baroness, Lady Chakrabarti, has said, if people are not able to work, and they are not allowed the right to remain but cannot be removed, they will have to be looked after by the state. The difficulty that the Minister has is that, without an impact assessment, there are all sorts of organisations that are filling that vacuum. The vacuum was filled at the weekend—and the estimated additional costs of this Bill were £3 billion to £6 billion in additional accommodation needed to detain those people who could not be removed.
Lord Verdirame (Non-Afl)
My Lords, I hesitated to come in before and I apologise for not participating at Second Reading, but I followed the debate closely. I must declare an interest: I have been instructed before by the Government as a member of the Bar on matters relating to the subject matter of the Bill. But I can speak freely on Amendment 13 because it is not anything on which I advise. I wish to speak in support of it.
The negotiation of removal or readmission agreements is, of course, a matter for the Government and not for Parliament. But there are many examples in treaty negotiations of Governments invoking pressure from their parliaments—or even from their courts—as a reason for not being able to make a concession or for insisting on concessions from the other side. It seems to me that it might end up strengthening the hand of the Government in these negotiations if they are able to say that Parliament is insisting on them.
The most difficult negotiation is, as we have heard, with the European Union. The European Union is not opposed to readmission agreements. On the contrary, it concluded a number of them with many countries, from Turkey to Belarus. Incidentally, the readmission agreements with Belarus and Russia have been suspended, quite rightly, because of the situation that has arisen. A number of us, I think, would have regarded those agreements as problematic from a human rights point of view even before that.
The reason why a readmission agreement with the UK is difficult is that the UK is a country from which European Union member states would have to take people back, rather than send them back. The Government published a draft readmission agreement for negotiation with the EU in the summer of 2020. That text is still available on the government website. If the EU had accepted that treaty, it would have allowed the UK to send people back to EU member states—not only permanent residents and nationals, but also third-country nationals who have transited through an EU member state. The provisions in that draft treaty proposed by the UK were identical to a number of provisions found in readmission agreements concluded by the European Union, including the one with Turkey. The Minister will correct me if I am wrong about this, but I think that negotiations with the EU on the Government’s draft proposal never took off.
It is worth noting that both the UK and the EU—and that includes the EU in its own capacity and EU member states—are subject to quite wide-ranging treaty obligations on both migrant smuggling and human trafficking. These treaties impose various obligations of international co-operation, including, in the case of the migrant smuggling protocol, the obligation to
“cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea”.
Generally speaking, these are obligations of conduct rather than by result. They do not oblige the EU to accept the terms of the treaty proposed by the UK. They do, however, require the EU, EU member states and all parties to those treaties to engage in good faith negotiations with the UK on readmission, particularly where very similar treaties have been concluded in other contexts. It would be a very unattractive position for any party to these treaties to take the view that they are open to readmission agreements only when they are in their interest and not when they are not.
It seems to me that Amendment 13 would bring some of these questions to the surface by requiring the Government to update Parliament on the status of these negotiations and on the reasons why these negotiations might not be progressing. That is outlined in subsection (3) of the new clause proposed in Amendment 13. It would not be a case of government and Parliament speaking with separate voices; on the contrary, it would be a case of Parliament adding its voice and adding pressure for the purposes of achieving an objective that both Parliament and government consider important.
My final point concerns the language of “formal legally binding agreements” in subsection (1). It is broadly right that this should be the optimum arrangement—the formal legally binding agreement—but it is also the case in this sort of practice that states will often conclude agreements that are not binding. The European Union has two such agreements with Guinea and the Gambia. For various reasons, those agreements, in some cases, are more appropriate. My understanding—and the Minister will, again, correct me if I am wrong—is that the arrangement with Albania that was announced a few weeks ago is actually part of a non-binding arrangement that was built on an existing treaty. The treaty itself is the one from 2021, but the further agreement that was announced by the Prime Ministers at their recent meeting is an example of such a non-binding agreement that can, in certain circumstances, be a better way of achieving that same objective. I would agree, however, with the notion that the formal and legally binding agreement is the gold standard in this kind of situation.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, this Bill sets out a duty on the Secretary of State to make arrangements for the removal of a person who has arrived in or entered the UK illegally and satisfies the four conditions set out in Clause 2. In the majority of cases, formal returns agreements are not required in order to carry out removals. Most countries co-operate with returns, and these relationships are managed through official-led engagement with immigration counterparts in receiving countries and through consular services based in the UK. Returns agreements can be a useful tool to solidify or improve returns co-operation and are sometimes requested by the receiving country. We carefully consider whether it is beneficial to enter into negotiations to formalise a returns relationship, having regard to the potential requests that the other side would seek to incorporate into an agreement, such as a liberalisation of the UK visa requirements in respect of their nationals.
As of May 2023, the Home Office has 16 returns agreements in place. Recent additions to the list include Albania, India, Nigeria and Pakistan. Just last week, the Prime Minister announced the start of negotiations on a new returns agreement with Moldova. A number of these agreements are sensitive, and receiving countries might withdraw co-operation if they are publicised, so it would be detrimental to formalise and publish all such agreements. There are also some countries where the existing security and country situation might prevent returns taking place, such as Sudan and Afghanistan. We continue to monitor the situation closely in those countries with a view to resuming enforced returns as soon as is practicable and safe.
I should add that, while returns agreements have a valuable role to play, they are not silver bullets. The noble Lord, Lord Coaker, has, in terms, accused this Government of ripping up the Dublin convention, but may I just remind the noble Lord that the UK was a net recipient of migrants under the Dublin scheme? As my honourable friend Tim Loughton said in the other place:
“In the last year that we were covered by the Dublin convention, before the pandemic struck, we applied to the EU for 8,500 returns under that returns agreement and only 105 were granted—that is 1.2%—so what he says is complete nonsense. It did not work when we were in the EU, and he is now expecting to magic up some agreement that the EU will not give us anyway”.—[Official Report, Commons, 26/4/23, col. 792.]
Mr Loughton was, at that time, intervening on the speech of Stephen Kinnock in the other place.
In addition to the returns agreements, we also have our world-leading migration and economic development partnership with Rwanda. I remind the House that there is no limit on the numbers that can be relocated to Rwanda under the partnership agreement.
The noble Lord, Lord Coaker, cited various figures, including in relation to the current asylum backlog. I remind noble Lords that, under Clause 4, any asylum claims made by persons who meet the conditions in Clause 2 are to be declared inadmissible. It is, of course, important to deal with the current backlog. The Prime Minister announced today that the initial decision legacy backlog is down by over 17,000, but there is no correlation between these legacy cases and the cohort to be removed under the Bill.
The noble Lord, Lord Kerr, asked about the impact assessment for the Bill. We have already published the equality impact assessment, and we will publish an economic impact assessment in due course. Noble Lords will have to wait patiently for the economic impact assessment. In the interim, I do not propose to comment on impact assessments issued by NGOs or leaks in the media.
Lord Scriven (LD)
I have a very important question. The noble Lord and government Ministers keep saying from the Dispatch Box, here and in the other place, that certain things will happen if the Bill goes through. Has the Home Office actually completed an impact assessment which clarifies exactly what the Minister is saying?
Lord Murray of Blidworth (Con)
Certain things will happen when the Bill goes through; the system described within it will take effect. I assure the noble Lord that this is something that the Home Office expects to happen—that is, that returns will be effected in accordance with the duty imposed on the Secretary of State.
Lord Carlile of Berriew (CB)
If the impact assessment is to be provided in a timely way—or if not—will the Minister ensure that it contains an estimate or assessment of the number of people who would have been granted asylum but will not be because they are excluded as a result of the blanket effects of the Bill?
Lord Murray of Blidworth (Con)
It is not for me to dictate what is in the impact assessment. The department will provide the impact assessment in due course—
Lord Murray of Blidworth (Con)
I will come back to the noble Lords in due course, but I need to make progress.
The broken asylum system costs the UK £3 billion a year, and that is rising. There seems to be an impression that, without the Bill, those costs will not continue to rise at an alarming rate year on year. Doing nothing is not an option.
In conclusion, I agree with the noble Lord that returns agreements have a place, and we will seek to negotiate these where appropriate. By their nature, any such negotiations involve two parties. The UK cannot compel other countries to enter into such agreements; they are a two-way process. Moreover, it will not enhance such negotiations to require their status to be set out in a three-monthly report to be laid before Parliament.
Lord Murray of Blidworth (Con)
I ask the noble Lord to bear with me for a moment.
The Lord Privy Seal (Lord True) (Con)
My Lords, if I may, I remind the House that it is not required for a Minister to give way. However, your Lordships may like to recall that we are in Committee, and the normal procedure of Committee is that someone can intervene again. However, I think it is always helpful for the House to allow the Minister to complete his remarks—and then, doubtless, the noble Lord may wish to comment on them.
Lord Murray of Blidworth (Con)
As I say, this will not advance our negotiating position—quite the contrary. This amendment could well make such negotiations harder. It does not help the UK’s negotiating position to be setting out its negotiating strategy in public. I therefore invite the noble Lord to withdraw his amendment.
Lord Carlile of Berriew (CB)
May we return to something that the noble Lord said a few moments ago? He said that it is not for him to dictate what appears in an impact assessment. If it is not for a Minister—either this Minister or one of his noble or honourable friends, either in this place or another—to dictate what appears in an impact assessment, for whom is it to determine what appears in one?
Lord Murray of Blidworth (Con)
The noble Lord and I appear to be talking somewhat at cross purposes. My answer was that it was not for me as the Minister to inform the contents and the conclusions of the impact assessment; it is of course for the Minister to ask broadly for the topics that the impact assessment should cover.
Baroness Jones of Moulsecoomb (GP)
Does the Minister understand that, if he answered the questions that your Lordships are asking, he would not experience this number of interventions? It is a rudeness not to answer our questions.
Lord Murray of Blidworth (Con)
The noble Baroness will have heard the comments from the Lord Privy Seal.
Baroness Lister of Burtersett (Lab)
To take the noble Lord back to the question that was asked by the noble Lord, Lord Scriven, has the economic impact assessment been completed or not? If it has been, why do we not have it? If it has not been, surely it should have been informing the Bill itself.
Lord Murray of Blidworth (Con)
I can do no better than say that the impact assessment will be published in due course.
Baroness Butler-Sloss (CB)
How do the Government justify not having an impact statement until presumably the whole of this House has completed its dealing with the Bill? It seems to me outrageous. How can the Government justify that?
Lord Murray of Blidworth (Con)
As I say, I am afraid the impact assessment will be published in due course.
Lord Cormack (Con)
My noble friend must accept that the Bill can be expedited and the House can be satisfied if a proper impact assessment is produced in time for Report. The whole purpose of Committee is to probe, as we are doing this afternoon and so on. However, when it comes to Report, when the House has to make significant decisions on the most sensitive piece of legislation that has been before Parliament for a very long time, it is crucial that we have all the facts at our disposal.
Lord Murray of Blidworth (Con)
Of course, I hear what my noble friend says.
Lord Scriven (LD)
Regardless of when the impact assessment will be published, the Minister keeps restating issues as fact. I therefore ask: have those facts been determined by a completed impact assessment that he and his colleagues have seen and signed off?
Lord Murray of Blidworth (Con)
I am afraid I cannot do more than say that the impact assessment will be published in due course.
Lord Kerr of Kinlochard (CB)
The Minister really should say whether an impact assessment was produced. I apologise for reverting; I was the one who raised the question of the impact statement. I am not terribly happy with the message that the Minister is conveying. The noble Baroness, Lady Lister, put her finger on it. Presumably the Government did their own assessment of the impact of the policy that is reflected in the Bill; therefore, an impact assessment of some kind existed. If it did not exist, I do not know how the Government could have decided to adopt this policy. If it does exist—I am sure it does, in some form or another—the noble Lord, Lord Cormack, and the noble and learned Baroness, Lady Butler-Sloss, are surely right. We are being asked to take a decision without knowing its effect. We do not know—other than breaking humanitarian law and international commitments—what practical effect the Bill will have. Therefore, before we finish Committee, the Minister should change his line and let us have it.
Lord Murray of Blidworth (Con)
I am afraid that I must disagree with the noble Lord. The point about the Bill is that we know that deterrence has effect, and we have seen that, as the Prime Minister announced this morning, in relation to the effect of our returns agreement with Albania.
Baroness Chakrabarti (Lab)
I am grateful to the Minister for his patience. Could I try this another way in relation to the debate on the impact assessment? If I am wrong about this, I want to be set right. This is not a rhetorical question; this is a genuine question about the process and purpose behind these impact assessments. I had been thinking that the purpose of these various assessments by the department was that they become part of the case for the legislation in Parliament. The department does the drafting and the policy and that is the Bill, that will be law; and to back it up, it has its case based on the evidence that it has marshalled.
If I am right about that, that gives rise to the concerns about why we are going further and further down the legislative process before the court of Parliament—if you like—without the evidence base. Of course, that is particularly important in the case of so-called illegal migration, because public expense is such a concern in the public debate about immigration: cost-benefit economic analysis is always a keen part of the debate in the Committee, in Parliament and in the public square.
Finally, on this same point about process and the impact assessment, the Minister said earlier that it was not for him to dictate what would be in the impact assessment, and I do understand that, because no Minister would want to dictate that. However, if I am right, and the purpose of these assessments is that they are part of the Government’s case for the legislation, surely it is for the Minister and his colleagues at ministerial level to sign off on the quality of this work and the soundness of the proposition in it. Perhaps the Minister could clarify that. It is not a judicial process; it is an executive process of marshalling the economic case for this legislation.
Lord Murray of Blidworth (Con)
There is no statutory requirement to have a public impact assessment in relation to items of public legislation. Indeed, as I understand it, many pieces of legislation do not have one at all; so it is not a statutory requirement, as perhaps the noble Baroness seemed to suggest. Clearly, there is work done in the department behind the development of policy, and an economic impact assessment is certainly not an essential part of that process; nor is it a fundamental part. It is a part and, as I say, it will be published in due course.
Lord Alton of Liverpool (CB)
My Lords, surely this is not just about statutory requirements. Will the noble Lord contrast this with the way in which the right honourable Theresa May presented to Parliament the modern slavery legislation? That was dealt with by pre-legislative scrutiny, by consensus being developed across the political parties in another place, and by getting bicameral as well as bipartisan agreement around a similarly controversial question, much of which informs this particular Bill. Will the noble Lord accept, therefore, that the expressions that have been voiced around the Chamber are as much about the integrity of Parliament and the way we do things as they are about the substance of the Bill?
Lord Murray of Blidworth (Con)
Well, I always listen intently to the noble Lord’s measured contributions. Of course, the key distinction between this Bill and the Modern Slavery Act 2015 is that this Bill is to address an emergency presently affecting our country and to stop people drowning in the channel. That is why this measure has to be taken through Parliament at pace—in order to put in place a deterrent effect that stops those journeys being made.
Lord Hannay of Chiswick (CB)
My Lords, the Minister has made reference to the reduction in the number of Albanians using the cross-channel route, which is the object of this Bill. I think many of us strongly welcome and support what the Government did to negotiate with Albania and return people who are economic migrants. But would he not recognise that all that is happening under powers in the Nationality and Borders Act? It is nothing to do with the legislation before us. It is not relevant, frankly, to the case of Albania. So, it would be best not to pray in aid the welcome reduction in the number of Albanians crossing the channel, which is being dealt with under existing legislation. Is that not true?
Lord Murray of Blidworth (Con)
Hesitate as I do to disagree with the noble Lord, Lord Hannay, the amendment tabled by the noble Lord, Lord Coaker, relates to returns agreements. We have negotiated with Albania an effective arrangement allowing for the return of Albanians. It is more to do with that, I suggest, than with the 2022 Bill, although of course it all plays its part. It is an example which demonstrates that deterrents work.
Lord Hunt of Kings Heath (Lab)
My Lords, the Committee is entitled to ask what the Minister means by “in due course”. Specifically, will the impact assessment be available before Report? My thinking is that the House should not allow the Bill to begin Report without the impact assessment being available.
Lord Murray of Blidworth (Con)
I hear what the noble Lord says. I will take back his comments, and those of others, and we can reflect on them.
Baroness Brinton (LD)
My Lords, on the point raised by the noble Lord, Lord Hunt, can the Minister write to him, and put a copy of the letter in the Library, on whether the impact assessment will be published before Report,?
Lord Murray of Blidworth (Con)
As I say, I will take the mood of the Committee back to the department.
Lord Horam (Con)
My Lords, as an economist I am aware of the fallibility of economic forecasts. The Governor of the Bank of England had to admit recently that the forecast for the inflationary effect was 30 years out of date. We should be wary of placing too much reliance on economic forecasts as part of any impact assessment.
Of course, as the noble Baroness, Lady Chakrabarti, has just said, there must be some understanding of what the likely effect will be, based on international evidence and so forth. The Government have not gone into this totally blind. Nevertheless, we are talking here about a novel situation. We just do not know what is likely to happen as a result of a deterrent effect. We do not know what effect the Nationalities and Borders Act has had, and we do not know what effect this will have. We should therefore be a little guarded about the value and importance of an impact assessment in this case.
Lord Murray of Blidworth (Con)
I am very grateful to my noble friend for that intervention; he makes a very good point, with which I agree. Economic assessments are guarded with caveats, like any other economic forecast.
Lord Griffiths of Burry Port (Lab)
My Lords, I will be very happy to agree or disagree with whatever impact assessment arises, when I see it. How can we possibly take the advice just offered and make an opinion about something that might or might not be accurate until we see what to base our judgment on? It is an extraordinary, circular argument, from someone who wants to give a fig leaf to the Minister.
Lord Murray of Blidworth (Con)
I hear what the noble Lord says, but in any Bill the economic impact assessment—where one is provided, which is not in every case—is only ever one piece of the documentation that is available in support of a Bill. The impact assessment will be published in due course; I am afraid I cannot give the noble Lord any more information. I hear what he says, and the contribution from the noble Lord, Lord Hunt of Kings Heath, and will take their comments back to the department.
Baroness Lister of Burtersett (Lab)
My Lords, on 24 May, the Minister said the same thing: that he would take our concerns back to the department. There have been nearly two weeks for the department to reflect and act on our concerns about the economic impact assessment and the child rights impact assessment—which some of us consider to be even more important.
Lord Murray of Blidworth (Con)
I am afraid that I have nothing to add other than that it will be published in due course.
Lord Paddick (LD)
I am sure that the Minister did not mean to ignore the questions that I put to him. Perhaps he has not had the chance to read today’s Times. Can he write to me on the veracity of the reports in today’s Times and, while doing so, respond to the article in the Telegraph saying that the Home Office has failed to identify sufficient detention spaces as required by the Treasury?
Lord Murray of Blidworth (Con)
As the noble Lord well knows, it is not government policy to comment on leaks. That is a fairly long-standing convention. I do not propose to do so now.
Lord Coaker (Lab)
My Lords, I think the Government and the Minister are in a mess on this, particularly given the fact that the Minister cannot reassure us about the impact assessment.
The noble Lord, Lord Kerr, put it at the beginning but I was going to finish by saying that the reason I put forward Amendment 13 was to try to get some of the detail that is necessary for parliamentarians to actually make decisions about whether or not a law is fit for purpose. The Minister is now in real trouble through the rest of the Committee, not just on this amendment, which I particularly posed around returns. The noble Lord, Lord Paddick, mentioned that a number of questions were asked, including by me, and that the Minister failed to answer virtually any of them—apart from those on the Dublin III agreement, which, if I might say, was something that would have been in the impact assessment. The Minister said that what I said was “complete nonsense”. I would not have used that term about another noble Lord, but he called what I said complete nonsense. Having said that, the impact assessment is crucial.
Nobody has a clue what “in due course” means. My noble friend Lady Lister made the point that I have got written down: on 24 May, the Minister committed himself to taking back the concerns that there was not an impact assessment. Can the Minister confirm that he has taken those back already? If so, why is he saying that he is going to take back the concerns that the noble Lord, Lord Kerr, and others mentioned today? His answer should have been that he had already taken the concerns back and they are being discussed in the department.
Shall I tell the Minister why this is so serious? I know from my own ministerial times—as I am sure that others here who have served either as civil servants or Ministers will know—that there will be planning assumptions in the department. They have not just made it up—a few people from here, a few people from there; there will be planning assumptions. That is where the figure in the Times which the noble Lord, Lord Paddick, referred to has come from. Whether or not it is a leak, there is a figure of between £3 billion and £6 billion as to the cost over the next two years of the Government’s policy. There will be assumptions about the numbers of detainees and assumptions about the numbers who are going to be removed. All of those assumptions are available and in the Home Office. The Minister will have had some discussions about that. Of course he should be involved in the impact assessment. He will take the advice of civil servants but, in the end, with the Home Secretary, he will have to sign it off. The impact assessment will be signed off by Ministers. He will not write it but he will sign it off, or other Ministers will.
The Minister has available to him facts and figures that this Committee does not have. How on earth can you properly legislate on that basis? How can we say that the Minister, as he will have on some things, has a good point? I will say something and then he will say, “Lord Coaker hasn’t thought about that; if he had seen these facts, he would know that”. I would have to concede, because there are facts.
We are not yet in a Trumpian world of competing facts; we have facts. That is what every single noble Lord in this Chamber has asked the Government for. In order to make proper decisions, whether about returns agreements as in my Amendment 13 or other decisions, it is a convention that those facts are made available. At the very least, they should be made available before Report—they should be made available now. You can have an impact assessment and an economic impact assessment, or you can put the two together.
In effect, we are whistling in the dark. We have no idea what half of this means. I asked the Minister how many people are currently waiting to be deported, both pre 7 March and post 7 March, and how many the Government assume will be able to be returned. Where are the returns agreements? It is perfectly reasonable to ask the Minister responsible for the operation of the Illegal Migration Bill to say practically how it is going to work.
I said that the debate about principle will have to come but I am also interested in the unworkability of what has been said. The Minister took me on about Dublin III. What about the rest of it? Where are all the other facts and figures? This Committee has no idea. The Minister will have them; I read them out from his own statistics. Why did he not just repeat the public facts available about the Bill?
I know that we need to move on. I understand that and it is fair comment that I am now going on too long. But it is of such importance that we have the facts normally made available as a convention, a courtesy and a good way of doing legislation. They should be put before parliamentarians as they make decisions, debate, discuss and argue. Opinions will clash. People will think that some of what I say is rubbish and complete nonsense, but that is what happens in a debating chamber. It cannot happen if one hand is tied behind our backs. The Minister needs to publish that impact assessment as soon as possible. To do that “in due course” is not good enough. He needs to go back to the Home Secretary and tell her we need it to be published because we need to see the facts as we discuss the legislation. That is what every one of us thinks is important, and it should happen as soon as possible. I beg leave to withdraw the amendment.
Baroness Meacher
Baroness Meacher (CB)
My Lords, I shall speak also to Amendment 15. Even without an impact assessment, we know that Clause 2 and subsequent clauses will ensure that anyone coming to this country not through one of the incredibly limited safe routes faces likely detention and removal. Irrespective of the persecution, torture or whatever they have been through in the past, this is what they will face coming to this country under the Bill.
We formulated these two amendments originally in relation to unaccompanied children, but it seemed wrong on reflection that these protections should be limited in that way. Therefore, Amendment 14 now aims to ensure that the Secretary of State will not have the duty to arrange for the removal at the age of 18 of any person who arrived in the UK as a child. Amendment 15 would ensure that if, under Clause 3(2), the Secretary of State made arrangements for the removal of a person from the UK and the person came to the UK as a child, then such removal could take place only if it was in the best interests of the child. Amendment 17 would achieve the same protection for unaccompanied children, and I very much support it.
These amendments and others are vital in addressing the profound concerns of the Refugee and Migrant Children’s Consortium. It points out that the Bill, and in particular Clause 3, are an affront to the refugee convention, the UN Convention on the Rights of the Child and the Children Act 1989. If unamended, the measures in the Bill will have severe consequences for the welfare and physical and mental health of extremely vulnerable children who have fled conflict, persecution and other unimaginable harms. We do not have an impact assessment, the detail or the numbers, but the Bill will affect every child arriving in the UK who has not come by one of the very limited safe routes. These apply to Ukraine and Hong Kong—to put things simply. If one comes from Afghanistan, Sudan or one of those other very high-risk places, there are simply no safe routes for one to take.
As the Bill stands, trafficked children will be locked out of refugee protection. Instead, they will be detained by the Home Office outside the care system in entirely unsuitable, unacceptable accommodation without proper medical or mental health care, and removed at the age of 18. Those children will include a substantial number who are brought here as modern slaves. They have not chosen to come here. They have not come here voluntarily but have been brought against their will. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I have two amendments down, and I very much support Amendments 14, 18 and 27 in particular. “The best interests of the child” has become well known across the United Kingdom. It probably started in the United Nations’ rights of the child. It is to be found, as the noble Baroness, Lady Meacher, said, in the Children Act 1989, and all lawyers who deal with children work with it. It has become a guiding light, even for Governments of all sorts. It really is quite extraordinary that the current Government have gone almost exactly opposite to the rights of the child and, more important than the rights, the best interests of the child.
I have to say that over all the years that I have seen the Conservative Party, with all my family before me as Conservatives, and one a Minister, I cannot believe I have ever seen a situation where children were as disregarded and downgraded as this Government have done in this Bill. I cannot believe it represents what I might call the basic philosophy of a great party that has been in power, this time, since 2010. I am truly sad about it.
I have put down Amendment 16A, which is a probing amendment, as I need to know what the impact of the law is. I believe this came, though not to me, from the Children’s Commissioner for England. The scenario that she had in mind was a mother who was pregnant, who came to this country, the child was born and the mother died. The child was placed in care as a baby—I would be surprised if the Government kept a baby and did not put it to the local authority; at least I would hope so—and the local authority, because there was no family, placed the child for adoption with a British family or a family resident in this country. What happens to that child under this Bill at the age of 18? As far as I understand it, a child adopted by a British family would not automatically have British citizenship or may not have it—I am no expert on immigration—at the age of 18. Is that child, by now a member of a new family in this country, to be removed at 18? That is a legal question to which I do not know the answer, and it is crucial that that answer is given to us before we get to Report.
It is not only the children who are probably adopted at birth. I rather hope the Government are not going to keep young children, because there will be other parents who die and leave a child without a parent in this country, particularly younger children. Are younger children, not 16 or 17 year-olds, going to be kept by the Government in some sort of accommodation? Surely those children would be put into the care of a local authority under the requirements of the Children Act 1989. I would be astonished if they were not taken. If they go into care and they are young, they are very likely to be placed in a foster family. If they are placed in a foster family as a young child, they will grow up going to an English school, like the baby, and living an English life.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to support Amendment 17, spoken to so powerfully by the noble and learned Baroness, Lady Butler-Sloss, to which I have added my name; but I support any amendment that serves to take out or restrict the duty/power to remove anyone who arrived as a child—in particular, that tabled by my noble friend Lord Dubs.
As the Children’s Commissioner has made clear:
“Children must be able to claim asylum”.
Indeed, it is only last year that the then Minister assured us that
“unaccompanied asylum-seeking children will not be subject to inadmissibility”—[Official Report, Commons, 7/12/21; col. 311.]
and current Home Office guidance sets out in bold:
“Unaccompanied asylum-seeking children are not suitable for the inadmissibility processes”.
So will the Minister explain why they are considered suitable now, and on what evidence this policy volte-face is based?
I put my name to Amendment 17 because it gives the Committee the opportunity to consider whether the Bill is compatible with the duty under the UNCRC, enshrined in Section 55 of the Borders, Citizenship and Immigration Act 2009, to treat the best interests of the child as a primary consideration—a crucial issue, which we have touched on already.
Recently, the Government told the UN Committee on the Rights of the Child that they remained “fully committed” to upholding the principles set out in the UN Convention on the Rights of the Child. That is, of course, welcome, yet the civil society alternative report on the UK’s implementation of the UN convention observed:
“The best interests principle is often applied tokenistically for children in the immigration system, with no evidence of a structured assessment or explanation, and decisions and policies are routinely made that are contrary to children’s well-being”.
The UN Committee, which reported on Friday, noted “with concern” that the best interests principle “is not systematically applied” in all matters affecting children and states that it should be. As the committee goes on observe, this Bill is no exception.
The UN committee’s general comment number 14 on the best interests principle makes it clear that its operation requires certain procedural guarantees and that
“the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases”.
It spells out that
“primary consideration means that the child’s interests have high priority and not just one of several considerations. Therefore a larger weight must be attached to what serves the child best”.
This requires a child rights impact assessment that needs to be built in
“as early as possible in the development of policy”.
Yet here we are, on the second day in Committee, the Bill having already passed through the Commons and Second Reading in the Lords without any such impact assessment and, as I noted earlier, despite the Minister promising the Committee to take the matter back to his department nearly a fortnight ago. Where is it?
If it had been built in as early as possible in the development of the policy, it should have been available at the same time as the Bill was published, with an assessment of the impact on both accompanied and unaccompanied children. Instead, we have what can be described only as a superficial treatment of the best interests question in the equality impact assessment—which finally appeared on the morning of Second Reading in the Lords. The bland statement that the best interests duty is
“not the only factor that must be considered and other relevant factors must be taken into account”
is simply not good enough. There is also no provision to assess the best interests of individual children, unaccompanied or accompanied, before the decision is made to deem them inadmissible.
That the duty to remove does not apply until the age of 18 for unaccompanied children, and that the government amendment sets out the main situations in which the power to remove before that age might be used, represent no more than partial and inadequate mitigation. The Children’s Commissioner has made it clear that the government amendment
“does not go far enough. The power could still be used to remove children in ‘other circumstances’ which are not detailed”.
Could the Minister therefore explain what the “other circumstances” are in which the power to remove unaccompanied children might be used? How will it be determined if it is safe for a child to be returned to their home country?
In the supplementary ECHR memorandum, the Government acknowledge that the clause, as amended,
“is likely to engage Article 8 where an unaccompanied child … is not removed for potentially some years … in which time”
they
“may have built some considerable family and/or private life”
in the UK. The fact that the majority may be aged 16 or 17 does not alter that.
I found the justification for such interference with Article 8 quite breathtaking: namely, that it was
“in accordance with the law and necessary in a democratic society”.
Could the Minister explain how exactly treating children in this appalling way is necessary in a democratic society? This also applies to the duty to remove children once they reach the age of 18. ILPA reminds us that the Court of Appeal has observed:
“It is not easy to see that risks of the relevant kind to a person who is a child would continue until the eve of that [18th] birthday, and cease at once the next day”.
A number of health and social work organisations have drawn attention to the likely impact on a child’s mental, and possibly physical, health of knowing they will be removed once they reach 18. It will undermine their education and any chances of integration. Try and put yourself in the shoes of a child or young person who knows that they are here only on sufferance and that the clock is running down towards their removal. It is no way to live a life at any age, but particularly not your childhood.
The Refugee and Migrant Children’s Consortium notes that, in the past, unaccompanied children were typically
“granted temporary leave to remain until they turned 17½”.
As a consequence, the fear of removal meant that many children disappeared underground
“at extreme risk of exploitation and … danger of self-harm”
and even suicide.
This fear is echoed by the Children’s Commissioner, who has warned that the duty to remove at 18
“will make it incredibly hard to safeguard unaccompanied children, as they will likely go missing rather than be deported, leaving them very vulnerable to exploitation”.
These considerations, especially the dangers of exploitation in this country, based on experience, must surely trump the hypothetical fears used to justify the duty by Ministers—that, otherwise, children will be exploited by smugglers and traffickers. Again, this point was made by the Children’s Commissioner in her opposition to the duty to remove at 18.
According to the Refugee Council’s impact assessment, we could be talking about 13,000 to nearly 15,000 unaccompanied children per year. Let us not forget that, as the Children’s Society reminds us, these are children who are scared and traumatised, and who need security, support and the opportunity to experience their childhoods.
The Immigration Minister tried to reassure MPs that
“all the Ministers involved in the Bill’s preparation have thought very carefully about how we can protect children”.—[Official Report, Commons, 26/4/23; col. 837.]
But I am afraid he has failed to reassure the Children’s Commissioner, international human rights organisations, medical and social work organisations and children’s and refugee organisations. He has also failed to reassure the UN Committee on the Rights of the Child, which has called on the Government to “urgently amend” the Bill to abandon all provisions
“that would have the effect of violating children’s rights under the Convention and the 1951 Refugee Convention”.
Thus, if the Government genuinely want to protect children, they will at the very least accept some of the amendments proposed today and subsequently. But really, they should remove children entirely from the scope of the Bill, as called for by UNICEF.
Lord Kerr of Kinlochard (CB)
My Lords, it is a challenge for a mere male to follow the three previous speakers, but my name is on Amendment 22, so I must attempt it. Amendment 22 would prevent unaccompanied children being automatically deemed inadmissible if they came by an irregular route.
Overall, 86% of the unaccompanied children currently going through the asylum process are given permission to stay, including nearly 100%—over 99%—from Afghanistan, over 99% from Eritrea and over 96% from Sudan. But only 6% of these children granted protection and found to have a valid case for asylum here came through the official government schemes. They had to come by an irregular route because there was no other way for them. Putting these two facts together, the Bill asks us to rule out the possibility of even considering the vast majority of unaccompanied children’s cases. That seems not to be in keeping with British tradition, and it is certainly not in keeping with Articles 3 and 22 of the UN Convention on the Rights of the Child 1989.
Therefore, although I support all the amendments in this group, I strongly support the amendment in the name of the noble Lord, Lord Dubs, to which I added my name.
Lord Cormack (Con)
My Lords, the noble and learned Baroness, Lady Butler-Sloss, spoke movingly about her connections with the Conservative Party. Along with my good and noble friend Lord Tugendhat, I was privileged to enter the other place on 18 June 1970, almost 53 years ago, along with her brother Michael Havers, who of course became a distinguished Lord Chancellor and, tragically, died very young. But, when she made those references, I thought of him and us, and I thought that our motivation could be summed up in that well-known term “one-nation Conservative”. I am extremely proud of what my party has done over the centuries—it has a long history—and I am troubled about some of the Bill’s implications.
I apologise for not being able to take part at Second Reading, because of my wife’s illness. This is my first full day back, as it were, although I will be off again soon. I thought of those great figures of the past: my parliamentary hero, William Wilberforce, as well as Shaftesbury and others. They could not have signed up to what is before us today.
Lord Cormack (Con)
I hope my noble friend is listening, because I hope he will realise that he too is an inheritor of a great Conservative tradition; we must not be a Government who turn our back on that. Of course, the problem that the Bill is seeking to deal with is real, but it can be dealt with using a greater degree of sensitivity, generosity and, I dare say, Christianity. I urge him to take on board the points that have been made this afternoon, particularly by the noble and learned Baroness, Lady Butler-Sloss.
Lord Dubs (Lab)
My Lords, I will return to the amendments, particularly Amendment 22. I think that the Committee will permit me to refer briefly to the impact assessment argument, because it has a particular relevance to Amendment 22. The charity Safe Passage, some time after the Bill was first published, sent a freedom of information request to the Home Office to ask about the number of unaccompanied children who would be affected by the Bill—that is to say, those arriving in the UK through irregular means, including via small boats. The response stated that
“the Home Office does not hold the information you have requested. Whilst our reporting centres can ascertain the age of someone at the point of an event, we cannot establish from our electronic datasets who is accompanied or unaccompanied”.
That means the Government have no idea of the number of unaccompanied children that will be impacted by the provisions of the Bill.
I do not think that I need to say any more—because the argument about the impact assessment has been well aired already—except for one further thought. If the Government have no idea what the effect of the Bill will be, or any particular part of the Bill, I do not understand why they are putting it forward. That point has already been made, but it still puzzles me.
The point of my amendment is to exempt from inadmissibility claims for unaccompanied children, as has already been referred to in some of the other amendments. Under Clause 4(2), those claims will not be considered; they will have no right of appeal; and there will be no possibility of considering such a claim. Although the argument has already been put forward in some of the other amendments, it is a fundamental point, because the children from the countries with very high grant rates for refugee status are forced to make dangerous journeys because there are very limited options for safe routes to the UK. Many of the children come from those countries, and, of those children who have had their cases determined, the vast majority were permitted to stay and rebuild their lives in the UK under the present legislation. That means that the equivalent of those children who are now coming would not be allowed to stay, regardless of the merits of their claim under either the 1951 Geneva convention or the Convention on the Rights of the Child.
I want to make two or three other points. If a child is to be removed on reaching their 18th birthday, unless they are actually in detention they will quite sensibly say, “I do not want to go back. I am frightened of going back to where I escaped from”. They will disappear—of course they will. We would all do that if we were in their position; we would not hesitate. It seems to me that we are in danger of saying that we are going to lock them up until their 18th birthday before removing them. It is a preposterous policy.
The Government’s history on children has been somewhat mixed. I remember in the 2016 Act I put forward an amendment for unaccompanied children to come here, and it eventually passed both Houses—it went back once or twice—and became part of the Act. The Government then said: “Ah, but it applies only to 480 children”. That was an arbitrary figure, plucked out of the air, for which there was no rationale at all, except that the Government said that local authorities could not provide foster places, which was quickly disproved.
We then got on to the 2017 Act, at the time when the future of the Dublin treaty—or certainly the parts under which asylum-seeking children in one EU country could claim to join their families in another EU country—was in jeopardy. We passed an amendment in this House that the Government should negotiate to retain the provisions of the treaty. That was eventually accepted, having gone through both Houses. In the 2019 Act, the Government simply removed it. Without wishing to go into long periods of history, I was incensed about all these things but particularly incensed about that.
An upshot was that I was invited to a meeting with three government Ministers and seven officials, including one from the Cabinet Office, to engage in a discussion about the rights of children. I found that quite flattering—I thought the odds of 10:1 were quite favourable to me, given who was on the other side. I was given assurances. One of the Commons Ministers said: “Don’t you trust me?” I looked him in the eye and I lied: “Yes, I trust you, but I don’t trust the Government”—so it was half true—“And anyway, who is to say that you will be in your job in few weeks’ time?” He was not; he was moved on, and I am not sure whether he is in the Government now or not. But I was given certain assurances that were not adhered to, and the number of unaccompanied children who came fell rapidly from that point on.
The Government have in the past given assurances about unaccompanied children and they simply have not stuck to them. That is why I believe that this amendment is important. It will protect the rights of some of the most vulnerable young people fleeing from appalling horrors such as war, enforced conscription into armies, threats of torture and parents being killed. These are terrible things, and we are saying to them that it they get to this country other than by a prescribed route, of which there are hardly any, we will not consider their claim. That is appalling.
Lord Hannay of Chiswick (CB)
My Lords, I support the amendments in this group because they are at the heart of whether or not we are acting in conformity with our obligations under the UN Convention on the Rights of the Child, which I believe we are not. The noble Baroness, Lady Lister, has most helpfully brought to our attention the view of the committee set up to watch over the application by all 192 members of the UN to the Convention on the Rights of the Child. Its view is negative.
I am well aware that the United Nations does not have any enforcement powers in this matter—sadly, perhaps—but that does not mean that the British Government, which is usually a member of the UN in good standing and good faith, can simply ignore the views of the committee that was set up to watch over this legislation. To do so will have quite serious consequences in a much wider field, because there are plenty of members of the United Nations who shelter behind the lack of enforceability of the UN, whether it is in the Security Council or elsewhere, to do things that we, quite rightly, condemn outright, whether in Ukraine, the Taiwan Strait or wherever. The cost to this country of simply riding roughshod over our obligations under the UN Convention on the Rights of the Child is therefore quite serious.
The Minister will no doubt remind us that the UN Convention on the Rights of the Child is not incorporated into our domestic law. That is correct, but it was ratified by this country. How do we know that it was ratified, and how do we know that it covers all the provisions which this legislation is at variance with? Because we made two or three rather small, explicit reservations from the UN Convention on the Rights of the Child, none of which is relevant to the present matters we are debating—they relate to enrolment in the Armed Forces, education and so on. We accepted all the rest, and we ratified it and told the United Nations that we were going to apply all the rest. Now, we are going back on that.
I hope the Minister will not simply tell us that his opinion and that of the Home Office is that we are not infringing any of these obligations. I do not honestly think that that cuts any ice at all. I would be delighted if he would take, one by one, the articles cited by the noble Baroness, Lady Lister, and my noble friend Lord Kerr of Kinlochard, and explain why he has a different interpretation of those provisions. I say that more in hope than expectation, because the Minister does not seem to like answering specific questions of that sort. However, I hope on this occasion he will overcome his reluctance to do that and will address these problems. The UN Convention on the Rights of the Child is a serious matter. It is bringing better conditions for children worldwide. It is being used as an instrument to strike down all sorts of discrimination, and here we are building up new sorts.
Baroness Hamwee (LD)
My Lords, I have two amendments in this group. I, and we on these Benches, agree with pretty much everything that has been said, and with the specific amendments, including the first, introduced very succinctly by the noble Baroness, Lady Meacher.
I shall go back almost to the beginning of the debate. I do not come from a Conservative family—rather far from it, in fact; they were good News Chronicle-reading Liberals from Manchester—but they would have agreed with everything that the noble and learned Baroness said. I wonder whether, like me, she finds it particularly offensive that when the issue of the best interests of the child are raised, what the Government so often say is, “Of course we observe the best interests of the child. Of course we always take the best interests into account”, even to the extent, I may say, of sometimes saying that in immigration law best interests are paramount, which sadly they are not—not quite.
Amendment 18, also about unaccompanied children, would address the position—this seems to be a bit of a minnow compared with some of the points that have been made—when the Secretary of State has not been able to make arrangements with her, as I am bound to say, or his self-imposed duty to remove someone within six months, or, in the case of a child who arrives unaccompanied, within six months after the child has ceased to be unaccompanied. The Government must face up to what should happen if the Secretary of State sets herself a duty and then does not comply with it. This amendment would provide for regulations to except these cohorts. Though Parliament obviously could not amend the regulations, at least it would provide for the position.
Lord Alton of Liverpool (CB)
My Lords, I support the amendments proposed by my noble friend Lady Meacher, my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Dubs. I begin by referring to a meeting that my noble friend Lord Singh and I held with Dame Rachel de Souza, the Children’s Commissioner, quite recently. She had personally seen children coming off the boats. The Refugee Council found that, of the 45,000 people who made the journey in 2022, some 8,700 were children—one in five of the overall number. In response to the questions put by the noble Baroness, Lady Lister, perhaps the Minister could confirm the numbers.
Dame Rachel has also visited the accommodation in which many of these children are placed. I would like to ask the Minister a number of questions. When the Children’s Commissioner was consulted, was she consulted about this Bill? How did she respond? How does he respond to her view that the Bill drives a “coach and horses” through the Children Act 1989?
The position of children should certainly concentrate our minds. My noble and learned friend perhaps knows better than anyone in this House, as a former head of the Family Law Division, how important it is that we have proper cognisance of the effects of law on children. I asked Dame Rachel about the origins and stories of some of the children whom she had met, to which my noble and learned friend referred as well. Some had travelled from Sudan, Eritrea, Afghanistan and Iran; some had taken journeys that lasted a whole year; some had been left as orphans; and some had been traumatised by war. Many told horrific stories. For instance, she described the story of an Iranian boy who watched his parents being killed and who made the long and arduous journey here to safety. She also referred to a Down’s syndrome child left on their own. She said that decisions about their treatment and future were being taken by inappropriately low-ranking officials who had “no understanding of safeguarding”. Will the Minister urgently look into this question about whether safeguarding criteria are different from the safeguarding used in children’s homes? Are the provisions in the Bill compliant with the duties contained in the education Acts, and are they Gillick compliant? Does the Minister recognise the Children’s Commissioner’s description of the Bill as a “traffickers’ charter”?
No child should be assumed to be an adult—a point made very well a moment ago by the noble Baroness, Lady Hamwee. There is no cliff edge. There seems to be an assumption woven into the web and weave of this Bill that there is a magic moment when you cease to be a child and become an adult. The position of children should certainly be put into the impact assessment, which we all wait to see with great anticipation. But it is not simply an impact assessment that has been missing from the legislative scrutiny to which I referred earlier. Only one Select Committee—the Joint Committee on Human Rights, of which I am a member—has had the chance to scrutinise this Bill, and it has had to do so at a crazy pace, with many of our meetings clashing with the Bill’s proceedings. All being well, it will reach its final iteration tomorrow—not, I am glad to say, “in due course”. This is simply no way to make legislation. When we legislate in haste, we end up repenting at leisure.
At Second Reading, I referred to my misgivings about a number of aspects of the Bill, and among these was the treatment of children: the subject of these amendments. They are affected by every aspect of the Bill, which clearly infringes the rights of children set out in the United Nations Convention on the Rights of the Child, referred to by my noble friend Lord Hannay.
The Home Office says, as its justification for doing this, that it is protecting the best interests of children by seeking to deter them and the adults accompanying them from embarking on these journeys in the first place. This is a straw man argument. It relies on the assumption that the child or adult knew in advance how dangerous the journey would be and assumes that, in any event, the journey would be less dangerous than, say, staying in Sudan, where millions are now displaced; or think of the plight of women in Iran; or think of those in Nigeria who are facing execution because of their beliefs or orientation, or facing genocidal attacks from Boko Haram. The UN Convention on the Rights of the Child does not revolve around such calculations.
The desire for deterrence cannot negate or supplant the duty of the UK and this Government to protect all children—every child, whatever their origins—within our jurisdiction. How a country treats its children is a mark of whether that country deserves to describe itself as civilised. How do convention duties square with indefinite detention in whatever place the Secretary of State and her officials deem appropriate and for however long she decides is reasonably necessary before she maybe decides that they should be cast out? How can our convention rights be squared with dispatching children to far-flung places without any true idea of what circumstances will await them there? Who will verify that appropriateness? What will be the criteria? How will such assessments be undertaken?
Too many of the Bill’s provisions relating to children are vague and insufficiently rigorous. The Bill puts on to a statutory footing the provision of accommodation for unaccompanied children, but then fails to define what form such accommodation must consist of. It is as if we have learned nothing from the endless ordeals of children in institutional care. I repeat: why is Home Office accommodation not being made subject to the duties set out in the Children Act 1989? Why are standards or requirements not set out in the Bill itself? I ask this against a backdrop of the Home Office accommodating unaccompanied asylum-seeking children in hostels since 2021. Can the Minister remind us how many of those children have gone missing? How many remain missing? How can the Minister justify the provisions to take a child from local authority accommodation, which is subject to the 1989 Act, and put them into Home Office accommodation, which is not? There are also convention implications from age assessment, not least invasive body searches of children who may have undergone trauma or have been subjected to abuse. Is that Gillick compliant?
We should be clear that these and other provisions mean that the Bill is likely to fall short of compliance with the UN Convention on the Rights of the Child. It is also likely to fall short under Article 8 of the European Convention on Human Rights, and potentially Article 3, which deals with prohibition of torture, inhumane and degrading treatment. Has the Minister also considered Article 22 of the convention and any use of powers to remove a child without first considering their asylum claim? These are crucial questions; if they cannot be resolved here in Committee, they will certainly have to be resolved when we reach Report. I hope the Minister will be able to give the Committee the courtesy of a reply to some of these questions today.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise with some hesitation after so many speeches—such powerful speeches—from every corner of your Lordships’ House. Having attached my name, however, to two amendments here—Amendment 17, in the name of the noble and learned Baroness, Lady Butler-Sloss, and Amendment 27, in the name of the noble Baroness, Lady Hamwee—I will make two points.
First, I very much agree with the noble Baroness, Lady Meacher, that no children who arrive as refugees should be covered by this Bill—indeed, no one should be covered by this Bill—but there is a special case to be made for unaccompanied children who have no adult with them to support them. I invite Members of your Lordships’ House to consider what it would be like if, tomorrow, you were dropped into a foreign country where you do not speak the language—or speak it very imperfectly—you have no resources and you know nobody. While you have decades of life experience, think how difficult it would be to cope. Then imagine what it would be like for an 18 year-old who has known only a life of war, torture and suffering; who thought they had found safety but then were thrown out again.
Secondly, I want to pick up a point that the Minister made in the previous group. He suggested that this Bill was the result of an emergency situation that had suddenly arisen overnight and that this was the excuse for why we did not have an impact assessment. Of course, what we have is a situation that has been developing over a decade or more. We saw people seeking to come across the channel, including—since we are focusing on the many unaccompanied children—people getting underneath the axels into sealed lorries or under trains and, all too often, dying as a result.
I am going to go back to 2016—seven years ago—when I went to a memorial service for one of those people, a 15 year-old called Masud. He was an Afghan who died in the back of a lorry trying to get to the UK to be with his sister. This picks up the point made by the noble Lord, Lord Kerr, about the lack of means for such children to get here legally. Masud should have been able to get here, but he could not. He took his chances and he died. Had he made it, think about where he would be now. Masud, as a 15 year-old, would have had three years—or maybe more—in our education system. He would have been part of our society and contributing. Imagine, however, a Masud who arrives here after this Bill comes into operation—this picks up a point made by the noble Baroness, Lady Hamwee, among others. What is Masud going to do just before his 18th birthday? What would any of us do? He is going to have to go into the black economy or the grey economy, which we know our hostile economy has thrust so many people into already: into the illegal car washes or into the illegal marijuana farms, where recently we saw four Vietnamese men, almost certainly victims of modern slavery, die in horrific conditions. Thrust into the gig economy—there has recently been coverage about this—you can rent an identity to be a delivery driver for a night, all under the carpet and all open to abuse and exploitation. Is that what we really want to do to children? Is that what we really want to do to our society: to make a society in which that segment of it grows and grows? As others have said, there is no way that the Government are going to be able to make the removals that they say they are seeking to do.
Lord German (LD)
My Lords, I have the Clause 3 stand part amendment in my name. A lot of the words already spoken have covered some very important parts of this clause. At its heart, of course, the clause does not protect unaccompanied asylum-seeking children; it just defers their removal. Such children will not be able to start to rebuild their lives or focus on their futures because of the threat of removal. I would like to look at a couple of issues—some of which have been touched on already but which are in this clause—that will need explanation from the Government and understanding if I believe them to be the truth.
On 16 June last year, the United Kingdom Government said in their report to the United Nations Committee on the Rights of the Child:
“The UK remains fully committed to the United Nations Convention on the Rights of the Child”.
Further, they added that they are
“committed to ensuring that the best interests of all children are a primary consideration in any decision that affects them”.
So, my first question to the Minister is: do the Government stand by that second statement: that all children are a primary consideration in any decision that affects them?
Lord Touhig (Lab)
My Lords, I had not intended to speak in this debate when I came into the Chamber this afternoon, but I heard the opening remarks of the noble Baroness, Lady Meacher—a powerful beginning to this debate—who spoke about the accommodation provided now for unaccompanied migrant children. I was further motivated to take part having listened to the speech of the noble Lord, Lord Alton, in which he referred to these same matters.
Since 2021, 4,500 unaccompanied migrant children have been placed in hotels, some as young as 10. Some 200 have gone missing and have not been found. In Britain, when a child goes missing, does it not affect all of us? Is it not the first item on the nine o’clock news and on the front page of every newspaper? However, 200 of these children have gone missing and have not been found again. A recent whistleblower who worked at the Home Office-run hotel in Brighton highlighted the harm that he saw these children facing. He said they were being picked up in the streets, presumably by traffickers, and have not been found again. He said that there were reports that the children had been subjected to emotional abuse and degrading treatment by the staff in the hotels.
Section 20 of the Children Act 1989 gives local authorities—and them alone—statutory protection powers for children. I have been asking for some time by what power the Government put these children in hotels, ignoring Section 20, and what Act of Parliament gives them that power. I have asked a number of Oral Questions and four or five Written Questions. In my latest one I asked His Majesty’s Government
“under which legal provision the Home Office has assumed child protection powers for unaccompanied migrant children”.
The Minister did me the courtesy of replying:
“We expect local authorities to meet their statutory obligations to children from the date they arrive in the UK. The best place for these young people is and will remain within a local authority care placement”.
On that, we are in total agreement. He went on:
“The Home Office is not currently in the position of corporate parent to any unaccompanied child”.
My question is simple. By what Act of Parliament—by what power—do the Government ignore Section 20, place these vulnerable children in hotels and leave them? Two hundred have gone missing. Shame on us.
Lord Scriven (LD)
My Lords, I want to show the importance of impact assessments. This goes back slightly to the discussion we were having under the last group of amendments, because only one impact assessment for the Bill has been delivered: the equality impact assessment, which talks about age. That is why I support many amendments in this grouping, particularly those in the name of the noble Baroness, Lady Meacher.
Once you read the equality impact assessment, it starts giving you a real indication of what the Government’s thinking is for putting children—whether unaccompanied or with families—into this Bill and the impact they believe it is going to have. The first issue, they say, is that it is not direct discrimination against these young people; they call it indirect discrimination. It is quite direct when you are not allowed to stay in the country; it is quite direct when you are going to be detained at the will of the Home Secretary; and it seems quite direct that when you get to the age of 18 you are going to be told to go, never come back and never claim British citizenship. That does not seem like indirect discrimination; it seems very direct.
The equality impact assessment says:
“Any differential impact on these age groups is the result of a person’s conduct and is justified and proportionate in order to achieve the legitimate aims of controlling migration and reducing crime”.
The aim of putting children in is to cut not just migration but crime, which is quite interesting, because on 27 April I asked a Written Question:
“To ask His Majesty's Government, for each police force in each of the last two years, how many crimes were committed by people who arrived by small boat crossings; and for each police force, what percentage of total crimes committed that figure represents”.
Based on the Government’s equality impact assessment, they will have those figures, because it is going to reduce crime. The answer I got from the noble Lord, Lord Sharpe of Epsom, was:
“The Home Office collects and publishes information on the number of crimes recorded by the police in England and Wales. This information can be accessed here: https://www.gov.uk/government/statistics/police-recorded-crime-open-data-tables. The Home Office does not hold information on perpetrators of crime who have arrived by small boat crossings”.
There is no evidence. I ask the Minister: what evidence do the Government have that including children, either accompanied or unaccompanied, will reduce the crime rate in the UK and by what percentage? It is in their equality impact assessment, so surely the Government have figures for that, otherwise it is just untrue—it is absolutely false.
The great and fascinating thing about this equality impact assessment is that it says: “The Department’s view”—not its evidence or empirical studies, but its “view”—
“is that the Bill should”—
not will but “should”—
“have a deterrent effect which can”—
not will or must, but “can”—
“result in fewer unaccompanied children arriving in the UK by dangerous and unlawful means”.
That is a nice sentence. There is no evidence; there is no study; there are no figures. It is a statement. I did some research, and I am very pleased that the Refugee and Migrant Children’s Consortium has also done some, because the only significant research I can see was done in 2018 by the UNHCR, which was called Destination Anywhere. It was a review on the reasons why unaccompanied children choose the UK. I use the word “choose” inadvertently. The evidence does not support the Government’s assumption—this equality impact assessment is an assumption, not fact, as the words show—that an effective ban on asylum claims for children will stop children travelling regularly to the UK.
Lord Cashman (Lab)
My Lords, like my noble friend Lord Touhig, I was not going to speak to this group of amendments because the arguments have been put so brilliantly. However, I cannot remain silent. I will be brief.
At Second Reading, I said that I could not believe that we were debating such a piece of legislation in a British Parliament. This afternoon, I cannot believe that we are having to argue for basic, decent, fundamental principles for those who are most vulnerable, and particularly for unaccompanied children who, as others have said, have left their country because they had no other choice. The reality of what they were facing drove them from their families, from their homes, and from a place where they felt that they would be safe and where they belonged.
I merely say this to the Government. The Government have two options: to work with those who have tabled these amendments to make a disgusting piece of legislation less so, or to explain to me and other noble Lords why these amendments are unacceptable and how this Bill will not diminish the rights of the most vulnerable children who present themselves on our shores.
Lord Purvis of Tweed (LD)
My Lords, having listened to the debate, I have three questions for the Minister.
First, if I understand the Government’s position correctly, the use of punitive measures against unaccompanied children in this Bill is for a deterrent effect. That is what the Minister said at Second Reading, and it has been a consistent line. For the Government to come to that view, they must have information about the numbers of unaccompanied children that the Bill will affect—otherwise it would have been impossible for them to have determined that this policy will be a deterrent. What is the Home Office’s core estimate of how many unaccompanied children it will require facilities for under this Bill? I know that the Minister has that information in his pack. He must tell the Committee what it is.
My second question is on the Government’s assertion that this measure complies with the UN Convention on the Rights of the Child. The Government say that they will act in the interests of the child. At the moment, the UN checklist is the mechanism used to determine the best interests of the child. Will the Minister commit to the Committee that the UN checklist for the determination of the best interests of the child will be used under the terms of this Bill? If the Government’s plan is for it not to be used, like the noble Lord, Lord Hannay, and others I fear that they will not be acting in the interest of the child according to the UN convention. This is particularly relevant given that the policy shift is moving away from determining what will be the safety of a child and towards what is considered to be a safe country. That is a very radical change. For example, there are a number of countries on the Government’s safe list that they are today advising against all travel to. Therefore, a British official, or any British charity, may seek to accompany an unaccompanied child back to a country that is considered to be safe while the Foreign Office advises against all travel to that area. How can that be consistent? Last year, I visited the Rwanda reception centre in Kigali. There were no children’s facilities. Can the Minister confirm that there are now?
My third question is this. The Government’s fact sheet on children states that:
“For any unaccompanied child who is removed when under 18, we will ensure that adequate reception arrangements are in place where the child is to be removed to”.
That is not true. What in this Bill provides for the assurance and the duty that there will be reception arrangements in place for any unaccompanied child? There is no mention of that in the Bill. The fact sheet cannot be correct if the Bill does not state that this will be the case. If the Minister can tell me where in the Bill there is a duty to ensure that there are reception facilities and reception arrangements in place for a child to be removed to, I would be very grateful.
Lord Paddick (LD)
My Lords, my noble friend Lady Bakewell of Hardington Mandeville added her name to Amendments 14 and 22 but is having to deal with matters in Grand Committee this afternoon, and means no disrespect to this Committee. My noble friend Lord German comprehensively set out the problems with this clause and why it should not stand part of the Bill. Having said that, we also support all the amendments in this group.
On 8 May 1995, Nelson Mandela said:
“There can be no keener revelation of a society’s soul than the way in which it treats its children”.
If the Government are serious about implementing the provisions of this Bill in relation to children, what would Mandela have said about our society’s soul? An infant, or even a child yet to be born, brought into the UK by a parent and by what the Home Office calls an irregular route, or an unaccompanied child not thinking of all the consequences—because children, some as young as 10 years-old, do not think about all the consequences of their actions—will never be able to acquire the right to remain in this country and will never be able to work. They will potentially be detained until they are 18 years-old and then deported. Many of them will have had no say in determining the circumstances that they find themselves in or will not have thought about the consequences of their actions. How can the proposals in the Bill be the actions of a society that describes itself as civilised?
Lord Coaker (Lab)
My Lords, I support the amendments tabled by the noble Baronesses, Lady Meacher and Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Dubs. They go to the heart of what many of us are concerned about: what this says about our country and our conformity to various conventions and international treaties that we have signed up to and agreed to be part of. I want to reiterate the importance of that. I will not go on at great length about it because I have spoken at this Dispatch Box, and will again, about there being a huge issue around compatibility with various conventions in this aspect—children—and with some of the workability and practicality of what the Government are setting out to do.
I join the noble Lords, Lord Purvis and Lord Scriven, in particular, in saying that it is quite extraordinary to read in the Explanatory Memorandum that the department’s view is that the Bill should have a deterrent effect, which can result in fewer unaccompanied children arriving in the UK by dangerous and unlawful means. Nobody wants anybody to come by dangerous means to a particular country, in this case ours, but it is just an assertion. It is the departmental view. No evidence, as the noble Lords, Lord Scriven and Lord Purvis, mentioned, is provided. Of course—without going back to the debate that we had—we have no impact assessment to make any judgments about any of that. I ask the Minister to clarify what that sentence means, what the evidence is for that, and how the Government have come to this view that the Bill should have a deterrent effect. It does all read, to a certain extent, as though the Government are justifying these actions by using unaccompanied children as a deterrent, which I think cannot be the Government’s intention. But that is certainly how it reads, and I think the Minister should put on the record that that is not the case, even though that is certainly what some of the refugee children’s charities have said.
I will ask the Minister a couple of specific questions. How old are the unaccompanied children we are talking about here? I think it was my noble friend Lady Lister who mentioned a child of eight. Some 5,200 unaccompanied children arrived last year. What has happened to them? What is the age range of those children? I think that knowing what has happened in the past would help us make some judgments and assessments about the future.
As my noble friend Lord Touhig mentioned, I think it is appropriate for us to ask what progress the Government have made in finding the 200 children who have been lost to the system. As I have said before, the Home Office is not a corporate parent. My own view is that if it was, it would be prosecuted for losing children. If a human parent lost children, we would be incandescent about it. But the Government have lost 200, and in their equality impact assessment, they warn that they are worried and concerned about children absconding from their care.
Will the Minister take up the point made by the noble Lord, Lord Dubs? Supposing an unaccompanied child is 12, are the Government expecting them to be deported when they are 18, or is there an age limit for that? Have they got to be under 16? It is Committee, so these are the sorts of detailed questions we ask, because otherwise we will not understand how the Government are arriving at their policies. The Government say that if they do not have a right to be here, they will be deported when they reach their 18th birthday. When does that start from? That is why I am asking about age—you can be here for seven years, go to school, and at 18 you will be deported. That was the point the noble Lord, Lord Dubs, was making; those are the practicalities of it. Does the Minister expect that if a child aged 17 was in that situation they would wait until they were 18 for the Government to come and find them and deport them? These are detailed questions, which, although we are in the main Chamber, are the point of Committee, to try to understand the practicalities and workability of the situation.
The Government made the amendment to say that there will be exceptions; there will be no requirement on the Secretary of State to deport or to remove—which is the Government’s preferred term—unaccompanied children, but there will be exceptional circumstances, which will be made by regulation. The Government said this would be for reasons of family reunion, and also if a safe country was identified. It would be helpful if the Minister said a little bit more about how that all works in practice, how that information would be found out, and what other circumstances there are, because those are just two examples. They are not the only exceptions; the Government say there are those two, but there may be other exceptional circumstances. What other exceptional circumstances does the Minister think that would mean?
Can the Minister clarify for us the Government’s policy with respect to the use of force with unaccompanied children and how they will be, if you like, kept in care and looked after? What are the Government’s provisions with respect to that?
Lord Murray of Blidworth (Con)
My Lords, Clause 3 sets out the power to remove unaccompanied children. This power will be exercised only in very limited circumstances ahead of an individual reaching adulthood. As the noble Lord, Lord Coaker, outlined, these include: reunion with the child’s parent; where the person is to be removed to a safe country of origin; where the person has not made a protection or human rights claim; or in other circumstances specified in regulations. If an unaccompanied child arrives in the UK illegally from a safe country of origin, they may be returned to their country of origin before they are 18. Of course, any such decision would be taken on a case-by-case basis.
I reassure the Committee that officials and Ministers take these decisions very seriously, with due concern for the sensitivities that have rightly been outlined by the Committee. But we need also to have in mind the profile of those who come on small boats. For context, I remind the Committee that—
Lord Murray of Blidworth (Con)
Perhaps I can take the noble Lord’s question in just a moment. For context, I remind the Committee that the majority of unaccompanied children who claimed asylum in the UK in 2022 were aged 16 or 17. Where there is a dispute about age, half are found to be adults.
Lord Scriven (LD)
I hope the Minister will stop this characterisation of the effects of this Bill as being just on those who arrive by small boats. He just did it again then. Is it not the case that this affects everybody, regardless of how they get here? It is not just small boats.
Lord Murray of Blidworth (Con)
Clearly, this Bill affects every person who falls within the four categories described in Clause 2, and that is all people who enter by any illegal method. Of course, at the moment, as we know, the majority of such entry is effected by small boats.
For any unaccompanied child who is removed while under 18, we will ensure that adequate reception arrangements are in place where the child is to be removed to. It is not simply a case of putting them on a plane back whence they came.
Lord Purvis of Tweed (LD)
I would be grateful for the Minister to respond to my point. I read from the factsheet, as he has just done. Where in the Bill is that made that a requirement?
Lord Murray of Blidworth (Con)
As I have already made clear, the answer is that the department has stated in both Houses that this is our position. The adequacy of reception arrangements is not something you would expect to see in the Bill, and it is consistent with the present regime that is operated in relation to unaccompanied asylum-seeking children.
Lord Murray of Blidworth (Con)
Forgive me. I must make progress. Doubtless, the noble Lord will have an opportunity at the end of my remarks.
Taking these measures will send a clear message that children cannot be exploited and cross the channel in small boats for the purpose of starting a new life in the UK. The clause provides the circumstances in which it may be appropriate to remove an unaccompanied child. However, the Government consider it necessary to be alert to the people smugglers changing their tactics to circumvent the Bill. As such, it is appropriate to have a power to extend the circumstances in which it would be possible to remove an unaccompanied child via regulations. This is very much a reserve power. We have to be mindful of changes in the modus operandi of the people smugglers. I cannot give the noble Baroness, Lady Lister, examples now of how the power might be exercised but I can assure her that such regulations will be subject to the affirmative procedure and therefore will need to be debated and approved by each House.
Clause 3 also sets out the power to make provisions for other exceptions to the duty to remove via regulations. This provision is important for providing the flexibility to make additional exceptions to the duty should we not want the measures in the Bill to apply to certain categories of persons. I will give one possible example of this: a person who is subject to the duty to make arrangements for removal may also be the subject for extradition proceedings and it would be appropriate for an extradition request, if approved, to take precedence over the duty to remove in Clause 2.
Amendments 14, 15 and 17 in the names of the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, seek either to exclude unaccompanied children altogether from the duty to remove or only permit the removal if it was in their best interests, even when they reach 18. Amendment 22 in the name of the noble Lord, Lord Dubs, covers similar ground. It seeks to provide for asylum and human rights claims from unaccompanied children to continue to be admissible within the UK.
All these amendments would undermine the intent of the Bill. As I have indicated, if we fill it with exceptions and carve-outs it will not achieve its aims and will serve to put more children at risk as the people smugglers would seek to fill the boats with even more young people, putting further lives at risk and splitting up families. I can confirm that since January 2018 around one-sixth of arrivals on small boats have been children aged 17 and under. We do not want an increase in this proportion or in the absolute numbers. Our asylum system is under increasing pressure from illegal migration, and the Government must take action to undercut the routes that smuggling gangs exploit by facilitating children’s dangerous and illegal entry into the United Kingdom, including via dangerous routes such as small boats.
Stopping the boats is in the best interests of small children who might otherwise make these dangerous and unnecessary journeys. In response to the noble Lord, Lord Kerr, and the noble Baroness, Lady Bennett, who raised the issue of a lack of safe and legal routes, I remind the Committee that the safest course for children and adults alike is to seek sanctuary in the first safe country they reach. These amendments would undermine the central premise of the Bill that if one comes to the UK via an illegal route, one will be removed and not permitted to remain in the UK and build a life here. The amendments will increase the incentive for adults to claim to be a child and encourage people smugglers to pivot and focus on bringing over more unaccompanied children via dangerous journeys. The effect would be to put more young lives at risk and split up more families. It is, I say again, in the best interests of children to enact these provisions and stop the boats. It is these amendments that will encourage the people smugglers, not the provisions in the Bill.
The noble Lords, Lord German, Lord Purvis and Lord Coaker, pressed me to set out the evidence underlying the purpose of the Bill. It is the Government’s view that if a person arriving illegally in the UK is faced with the prospect of being detained on arrival and swiftly returned to their home country, or removed to a safe third country, they will not pay the people smugglers thousands of pounds to provide them with passage across the channel.
We recognise the particular vulnerabilities in relation to unaccompanied children. That is why the Bill provides that the duty to make arrangements for removal does not apply until they reach adulthood. However, as I have explained, the Bill confers a power to remove unaccompanied children. This is not new but reflects current policy. This will be exercised, as I have said, in very limited circumstances, taking into consideration the best interests of the child. Following amendments brought by the Government at Report in the Commons, this clause now expressly sets out the circumstances in which the power to remove unaccompanied children may be exercised.
Turning to Amendment 16A, I first comment that the noble and learned Baroness set out what is likely to be an exceptional scenario. That said, she has a point in that an unaccompanied child who is subsequently adopted in the UK by a British citizen has an automatic route to British citizenship. They would therefore not be subject to the citizenship bans in Clauses 30 to 36. In this scenario, we agree that it would not be appropriate for the duty to remove to be applied to that child. We can address this by using the regulation-making power in Clause 3(7) to provide for exceptions to the duty to remove. An amendment to the Bill is, therefore, not required. In addition to adopted unaccompanied children, such regulations would also cover any other cohorts to whom the duty would apply but who exceptionally obtain British citizenship following their arrival in the UK. I hope that the noble and learned Baroness and my noble friend Lord Cormack will be reassured by this.
Amendment 18 from the noble Baroness, Lady Hamwee, is on one level unnecessary in that the regulation-making power in Clause 3(7) could be used to deliver the desired outcome. However, I come back to the aim of the Bill: namely, promptly to remove from the UK those who meet the conditions in Clause 2. We have brought forward a robust legal scheme that will enable us to do just that and I urge your Lordships not to add caveats, exceptions and exemptions to the Bill such as to make the scheme unworkable.
In answer to the noble Lord, Lord Alton, I should add that I very much value the continued dialogue we are having with the Children’s Commissioner for England. She recently met the Immigration Minister and me, and I am due to meet her again soon to discuss the Bill.
Lord Alton of Liverpool (CB)
My Lords, that point was specifically about the alignment of the Children Act with this legislation. Clauses 17 and 20, which deal with standards of accommodation, were raised by several noble Lords. Is the Minister intending to say something about that before he moves on?
Lord Murray of Blidworth (Con)
Clearly there are other provisions in relation to the standards of detention in the detained estate in relation to children. In the event that they are not detained, the usual prevailing regulations will apply and I am happy to write to the noble Lord with more detail in relation to that.
The noble Lord, Lord German, referred to the recommendation of the Delegated Powers Committee in relation to the regulation-making power in Clause 3(7). We are studying that committee’s report carefully and aim to respond before Report.
The noble Lord, Lord Coaker, asked about the use of force. We will address that point when we reach Amendment 70 on Wednesday.
In conclusion, Clause 3 adopts an appropriate balance in respect of unaccompanied children and, in those circumstances, I invite the noble Baroness, Lady Meacher, to withdraw her amendment.
Lord Purvis of Tweed (LD)
The Committee noted the Minister confirming that there would be no duty on Ministers to ensure that adequate reception arrangements are in place for an unaccompanied minor to be received. That is tragic. Can he also answer my question with regard to the fact that the only place at the moment with which the Government have an MOU is Rwanda? Are there any facilities for children in Rwanda that the Government have agreed-?
Lord Murray of Blidworth (Con)
As I say, the occasions when a child will be removed will be very exceptional and the two cases that are envisaged are for family reunion, therefore reception facilities will not be required, or if it was a return to a safe country, and that of course would not arise unless it was a Rwandan child. In those circumstances, I do not see the particular purpose of the noble Lord’s question.
Lord Purvis of Tweed (LD)
The other category does apply. If it cannot be to the safe country of origin, it applies to the schedule countries. The only scheme that we have at the moment, if it is not a safe country, would be Rwanda, so it is a simple question: are there any facilities for children in Kigali which the Government have agreed?
Lord Murray of Blidworth (Con)
As I said, the power will be exercised very exceptionally. I am happy to go away and look into that point, and I will write to the noble Lord on it.
Baroness Lister of Burtersett (Lab)
I asked a number of questions around the child rights impact assessment. Please do not say that we will get it in due course, because I quoted from the UN committee’s guidance on impact assessments and it was very clear that it should be shaping the policy process from the word go—so it must exist. Why do we not have it? It is good that the Children’s Commissioner is now being involved in discussions, but she complained that she was not consulted prior to the publication of the Bill. Given the impact on children, surely that is grave discourtesy to the Children’s Commissioner.
Lord Murray of Blidworth (Con)
From my experience, the Children’s Commissioner was involved, certainly while the Bill was passing through the other place, but I will look further into that point on timings. However, the noble Baroness is absolutely right that it is very important that she is engaged with in full in relation to the development of this legislation in so far as my personal view goes. In relation to the point about the child impact assessment, I am afraid that, however much it will disappoint the noble Baroness, I must revert to the usual answer and say that it will be provided in due course—but I of course take away the sentiment that she has evinced.
Baroness Butler-Sloss (CB)
In relation to the situation when the child becomes 18, have the Government taken into account the impact on younger children who may have spent many years in this country and are then basically deported?
Lord Murray of Blidworth (Con)
The noble and learned Baroness is quite right that it is a very difficult balance that we have to draw. The difficulty is that we cannot allow there to be a loophole which incentivises people smugglers to put young children into boats and expose them to greater danger. There is clearly a balancing act to be performed. There are powers in the Bill, as the noble and learned Baroness will have seen, in relation to exceptional circumstances. However, the principle is that a minor will be removed at the date of their majority. I should add, in relation to a point that was raised in the speeches, that of course children become adults at 18, and that is recognised in international instruments. I appreciate that children develop at different rates, but that is the legal position, as I am sure the noble and learned Baroness will agree.
Lord Coaker (Lab)
Further to the point made by the noble and learned Baroness, Lady Butler-Sloss, can I ask the Minister to look at this? I raised it in my remarks as well. My noble friend Lady Lister raised the case of an eight year-old. There is a problem here. I appreciate the point the Minister made, but there is a very real problem, as the noble and learned Baroness, Lady Butler-Sloss, mentioned. If you have a child who is 10 or 11, they will be here for eight years and will then be deported at 18. Can the Minister at least go away, have a look at this and discuss with his officials whether there is a way of being consistent with the Bill, as the Minister would have it, but also reflect on that as particular point that causes problems?
Lord Murray of Blidworth (Con)
I assure the noble Lord that these points have received bags of consideration, not least from me, because they are very difficult. Of course, the length of time a child is present is a material factor. I am glad to say, as I said in my earlier remarks, that the vast bulk of children who are found in the small boats are not in the eight to 10 age bracket but are more likely to be 16 or 17. I can hear the noble Lord saying sotto voce that I have not answered the question. The answer is yes, of course I will carry on thinking about it, but it is a difficult question. In the Government’s view, we have come to the only logical solution that does not provide a very large hole in the scheme of the Act.
Baroness Brinton (LD)
The Minister made reference to the balance that the Government believe there is in the Bill around unaccompanied minors and encouraging smugglers. There have been a lot of speeches in this group about the rights of the child. Article 2 says they apply to every child; Article 4 says that Governments must do all they can to make sure that every child can enjoy their rights; and Article 22 on refugee children says Governments must provide them with appropriate protection and assistance to help them enjoy all the rights of the convention. How is that balancing the rights of the child? I wonder whether the Minister could write to compare and explain—otherwise, I can see that the UK will have to withdraw itself from the rights of the child.
Lord Murray of Blidworth (Con)
I do not need to write to answer that. The answer is that there is nothing incompatible with the UNCRC, because obviously a child who is here is having all their rights as a child respected, and if they are exceptionally removed under the circumstances described in the Bill it will be in a manner that is compliant with the UNCRC, particularly if it is for family reunion or for return to a safe country, which is presumably also a signatory to the UNCRC and will afford them their own rights.
Baroness Brinton (LD)
With the greatest respect to the Minister, we have not yet seen the detail. That is the problem. The Minister has outlined two or three areas and said there will be others. It is not clear to this Committee exactly what those details are. I will repeat the earlier request: will he please write and set them all out?
Lord Murray of Blidworth (Con)
To my mind, I have set out the detail, but of course I will go back and give it further thought.
Lord Kerr of Kinlochard (CB)
The Minister made a slightly unconvincing effort to persuade us that what is envisaged is in the best interests of the child. It rested on a couple of planks. One was that the safest route for the child will be to stop in the first safe country they come to. Hundreds of thousands of them do. If you go to look at the camps in Turkey, Greece or the Lebanon, you see that there are hundreds of thousands of unaccompanied children who have fled from conflict zones and are there. I am not sure that it is in their best interests to be there. There is a minuscule number who come here, perhaps because they speak English and not Greek or Turkish, perhaps because they have family or connections here, or perhaps they have the possibility of a home here. I cannot see why it is in their best interests to go into the camps in the first safe country they come to you and not come to their connections, family or prospects in this country.
Lord Murray of Blidworth (Con)
I know that the noble Lord and I do not agree, but the international law position is that children, and indeed asylum seekers, cannot be selective about where they wish to seek asylum. It is not an evaluative decision that an applicant can make. That is not the way the refugee convention works and, as we made clear at Second Reading, and as I think was widely accepted across the House, we sadly cannot take everyone who would want to come here—and that, I am afraid, is almost the logical corollary of what the noble Lord suggested.
Lord Hannay of Chiswick (CB)
My Lords, the Minister has chosen not to reply to various points made by the noble Baroness, Lady Lister, the noble Lord, Lord Kerr of Kinlochard, and me about conformity with the UN Convention on the Rights of the Child. He has simply stated, “In our view it’s fine”. The committee set up at the United Nations to overview this has considered this legislation and, as the noble Baroness, Lady Lister, said, has come to the view that it needs to be amended—a view that is rejected by the Minister. Presumably the UK was represented on that committee. Can the Minister give the Committee an account of the British representative’s statement in reply to the criticisms that led to it adopting that opinion?
Lord Murray of Blidworth (Con)
As the noble Lord knows, that is not something that I would have to hand in the course of the discussion of this amendment, but I will of course look into it.
Baroness Chakrabarti (Lab)
I hope the Minister will forgive me, but a narrow but important point of principle was raised by both the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Purvis of Tweed; they spoke on different matters but on the same issue of principle. One case was about what would happen to a child who came to this country as an infant and was adopted; another, put by the noble Lord, Lord Purvis of Tweed, concerned a child who would not be returned to adequate reception arrangements. I believe that the Minister said to the noble and learned Baroness, Lady Butler-Sloss, that we can deal with that in regulations—so nothing to worry about there—and the answer to the noble Lord, Lord Purvis, was that the Government have no intention of removing children to a country which, even if it meets the other criteria in the clause, does not have adequate reception arrangements for an unaccompanied child.
The whole structure of this so-called robust legislation is about creating tightly crafted duties to tie the hands of the Secretary of State. We know what that game is: it is about ensuring that we have, in effect, ousted the court’s supervisory jurisdiction. Powers become “duties to remove” and then, because there is a little ounce of compassion in relation to children, they say they will flip the duty and so there will not be a duty but, in certain circumstances, a power to remove even unaccompanied children. Given that this is the approach of the scheme, why on earth cannot comfort be given in the Bill to both the noble and learned Baroness and the noble Lord on those two limited circumstances? Why can the Bill not say that a child who came as an infant and who has now been adopted by a British national cannot be removed? For a child who would otherwise be removable because they have an identity document—there is a thought—or sent to a country where they are a national but there are no reception arrangements, why can it not be a criteria that there should be adequate reception arrangements? Why cannot that be in a Bill that is so tightly and robustly drawn by the Home Office?
Lord Murray of Blidworth (Con)
The noble Baroness is always a powerful advocate but, in this instance, these provisions are already clear. As I have said, and for the reasons that I have explained, there is no need, in those limited circumstances, for further exploration in the Bill. As I have said, these are things that we can explore, and doubtless will return to in other parts of the Bill, but for the moment I am afraid there is no need for further additions in relation to those areas.
Lord Touhig (Lab)
In 28 years of service in this House and the other place, I have never had more difficulty in getting an answer to a question.
The Minister has responded several times, and I spoke about it earlier this afternoon. He confirms that local authorities alone have the statutory power to look after these unaccompanied migrant children. He confirms in a Written Answer that the Home Office does not have corporate parent responsibility. So can he tell us which Act of Parliament the Home Office is using to detain these children and put them into these hotels, or—I always say never assume but I am going to break my rule—are we to assume that the Government know they are acting unlawfully?
Lord Murray of Blidworth (Con)
I must apologise to the noble Lord for not addressing that point in my remarks; I did mean to do so. It is a topic that the House has canvassed in Oral Questions on a number of occasions, particularly, as I seem to remember, in the winter of last year.
The present position will change when this Bill passes. As the noble Lord will have seen, there are provisions in the Bill relating to the transfer of responsibility for children, which set out the responsibility in the context of unaccompanied children. If the noble Lord looks, for example, at Clause 16, he will see that it concerns
“The power to transfer children from Secretary of State to local authority and vice versa”.
The present position arose as a result of the way in which the emergency in the channel has come about. As I said in my Answer, which was very fairly read out by the noble Lord, the clear position is that the responsibility should be for the local authorities, save for the circumstances described in Clauses 15 to 20.
Lord Scriven (LD)
In trying to answer my question, the Minister just reiterated what it says in the equality impact assessment. It was an important question. If the central tenet of the Bill is that children—accompanied or unaccompanied—not being given any dispensation will act as a deterrent, where is the evidence for that? In answering, the Minister said that this was the view of the department. Well it is the view of some children that the tooth fairy exists but, looking at the empirical evidence, it is quite clear that this may not be so. My question is clear: on what empirical evidence is the view of the department built, and when will this House get to see that evidence?
Lord Murray of Blidworth (Con)
It is a fairly standard rhetorical tool to ask where the evidence is but in this kind of field we have to operate looking forwards as to what might happen as a consequence of legislation, applying our own experience, and particularly that of the department in administering the UK border. It is the department, I would suggest, that is in a position to come to a view on these matters. It is not simply a case of some unqualified person reaching that assessment. The net effect is that it is the opinion of the department—
Lord Murray of Blidworth (Con)
It is the opinion of the department that a person would not pay a people smuggler to cross the channel if they were going to be detained and removed. It stands to reason, whatever the noble Baroness, Lady Jones, might shout from a sedentary position.
Lord Scriven (LD)
So the Minister agrees that this is not just about small boats; this is about the whole refugee and immigration system. Where is the evidence that the provisions in this Bill will meet the central issue that the Government wish to address and act as a deterrent to children, whether accompanied or unaccompanied. Where is the evidence?
Lord Murray of Blidworth (Con)
Obviously, as these provisions are not in force, there is no evidence of the impact of these measures. The noble Lord appears to require me to look into a crystal ball. We can make reasonable conjectures about the effect of these measures, and that is what we have done.
Baroness Meacher (CB)
Some time ago, the Minister asked me if I was willing to withdraw my amendment; I have a feeling that I ought to respond to that request.
This has been an extraordinary debate; I have never known there to be a debate following a request of the person to withdraw their amendment. The speeches from right across the Committee have been extraordinarily and unbelievably powerful because of course this is such an emotive subject. This Government want to detain and lock up children—accompanied, not unaccompanied, in the middle of an adoption or whatever else—in the most appalling accommodation. We know that, because this Government want to copy the model of the Greek islands, where the national view is that that accommodation is unacceptable and inhumane. We know that. That is what the Home Secretary wants to do. It is not surprising that people feel rather strongly against that proposal. That is just part of the proposition. The other is that, once children grow up, whether they are unaccompanied, adopted, leading normal lives over here or whatever else, they should be removed from this country, and of course regulations may determine the circumstances in which they may be required to be removed.
This is an appalling Bill, if I may say so. In a way, the application of the Bill to children just sums up the depth of the inhumanity of this Bill. I like to think that our Minister perhaps does have humanity and that he does respect our international obligations, and our 1989 Act and the rest of it—but he is acting and speaking on behalf of the Home Secretary, and I do seriously question whether she has the humanity that we all want her to have.
It was very important that we not only heard incredibly powerful speeches from the Labour Party, the Liberal Democrats and Cross-Benchers, but also that the noble Lord, Lord Cormack, made a point on which I think we all agree: this Bill does not reflect what we on any Bench expect from the Conservative Party. I thank the noble Lord, Lord Cormack. That is why there is such an incredible unanimity of view that these clauses—Clause 3, Clause 4 and the rest of them—should not stand part of this Bill.
All I can do here is, for today, withdraw Amendment 14 on the basis that without a doubt these matters will return on Report.
Lord Bellamy
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Murray of Blidworth at page 5, line 38.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I hope I can be relatively brief in introducing a small group of technical amendments to the Bill and perhaps, if I may say so, allow the House to take a short break from the understandably strong feelings generated by the discussion.
The amendments essentially address three issues. The first is to define the term “national” as including a citizen of the relevant country. Thus Amendment 19 inserts a Bill-wide definition of the term “national”. The effect is that any reference to a country of which a person is a national includes a country of which a person is a citizen. In not all countries are citizenship and nationality exactly the same. Similarly, a reference to a person not being a national of a country is to be read as also referring to a person not being a citizen of that country. Amendment 19 ensures that the Bill is consistent in this regard. Amendments 16, 24, 28, 99 and 141 are simply consequential amendments. Amendment 128 makes a similar change to Section 80A of the Nationality, Immigration and Asylum Act 2002.
The second group of technical amendments ensures that the word “court”, where it appears in the Bill, includes a tribunal. That is in relation specifically to Amendment 25A, which refers to the definition of an application for judicial review. The definition of the application for a judicial review in Clause 4(6) is extended so that it covers an application to a tribunal. That will specifically be the judicial review jurisdiction of the Upper Tribunal or the Special Immigration Appeals Commission.
The substantive issues about the scope of judicial reviews—whether they are non-suspensive or not, and the related provisions of Clause 52 and 55—will, I am sure, be debated in due course. The effect of Amendment 25A, and the associated Amendments 115C, 116A, 117A, 123A and 123B, is to make it clear that the relevant provisions in each case apply to tribunal proceedings, especially proceedings in the Upper Tribunal, as they do to proceedings in the High Court or the Court of Session.
Finally, the third group of amendments includes Amendments 29, 31, 32, 33, 34 and 38, which relate to the country to which certain persons who satisfy the conditions in Clause 2 may be removed to. Effectively, they treat persons who hold a passport or an identity document from the country in question as if they were nationals or citizens of that country. If, for example, an Indian national had a French identity document, they could be returned to France, assuming that there were no exceptional circumstances preventing their removal there. In other words, it is simply to treat persons who have obtained an identity document in the same way as they would be treated were they a national or citizen of that country.
I am happy of course to deal with any points that arise, but I do hope that these relatively technical amendments find favour with the Committee, and I beg to move Amendment 16.
Lord Purvis of Tweed (LD)
I will just ask the Minister for clarification with regard to countries that we do not recognise or areas where there are territorial disputes. Two of the main areas people are coming to the UK from, which the Government wish to stop, are conflict-afflicted areas because of territorial disputes, where the UN has a particular mechanism of providing humanitarian identification.
Is it the government position that all those people will have to come from a state that we recognise? By definition, many of the asylum seekers are seeking asylum because they are being persecuted because they are on one side of a territorial dispute—some of these geographical areas I have visited. The Government in this Bill now seem to be indicating that they will come to a side with regard to which identification documents, either national or citizenship, they will recognise. Why is this the case?
Lord Bellamy (Con)
My Lords, the proposed amendments are to cover the technical situation where somebody who is not necessarily a citizen or a national happens to hold an identity document of that country, and therefore—almost by definition, but certainly by strong presumption—is clearly someone who has a close relationship with that country. Assuming it is a safe country and that there are no other circumstances that might create an exception, that is a place to which they should normally be returned. If, as I think the question is posing, there are real risks in sending that person back to a particular country, the procedures in the Bill kick in. That would be a question of fact in each case.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Lord for his explanation of the government amendments. I have two questions. First, what would be the status of people who have no passport: stateless people? Of course, there are stateless people in refugee camps. There are, perhaps preponderantly in refugee camps but also elsewhere, people who have no recognised state.
Secondly, it so happens that I was in the West Bank in Palestine last week. Palestinians who live in the West Bank are entitled to a Jordanian passport. They are not entitled to an Israeli passport, but they have an identity document as Palestinians in the West Bank. That is a different category from the category of people who are completely stateless. I am wondering whether the Minister could explain how these two particular examples might be accommodated within these government amendments.
Lord Bellamy (Con)
My Lords, I will, if I may, look into the questions posed by the noble Lord, Lord Ponsonby, and give a more precise answer. I think, just as an initial answer, we are essentially dealing with nationals of a country listed in proposed new Section 80AA of the Nationality, Immigration and Asylum Act 2002, which is to be added by this Bill. They are EU and EEA countries, together with Albania and Switzerland. It is to those countries that this applies. The provisions I referred to relate to EU countries, EEA countries, Albania and Switzerland, and I do not think that they touch at all on the situation of stateless persons in particular, or those who hold a Jordanian but not an Israeli passport, et cetera.
Lord Bellamy
““national” includes citizen;”Member’s explanatory statement
This amendment inserts a Bill-wide definition of “national”. The effect is that references to a country of which a person is a national include a country of which the person is a citizen and references to a person who is (or is not) a national of a country include a person who is (or is not) a citizen of that country. This is for consistency across the Bill.
Lord Hunt of Kings Heath
Member’s explanatory statement
This amendment, with others in the name of Lord Hunt of Kings Heath, seek to amend the Bill so that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the NRM and have it duly considered.
Lord Hunt of Kings Heath (Lab)
My Lords, Amendment 19A is on modern slavery. I will speak to a series of my other amendments relating to Clauses 4 and 21. I am grateful to the noble Baroness, Lady Hamwee, and my noble friend Lord Bach for their support.
I think we are all aware that modern slavery is a brutal crime involving sophisticated criminal networks buying and selling people for profit. Victims of this appalling crime may be forced to enter the UK illegally, coerced, deceived and forced against their will, with their identity and decision-making powers stripped away. If left unamended, the Bill would see victims punished for crimes committed by the perpetrators, deported or held in detention centres, exacerbating pre-existing traumas.
In the past 12 years, organisations such as Hestia—the leading modern slavery charity in the UK—to which I pay great tribute, have supported victims via the modern slavery victim care contract. In that time, these organisations have supported over 18,000 victims of modern slavery. Survivors have been exploited for profit by criminals often operating as part of organised networks, both in the UK and internationally. The Bill will do incredible damage to those efforts.
Clause 4 applies the Bill’s provisions to people who claim to be victims of slavery or human trafficking, or those who have made an application for judicial review in relation to their removal from the UK under the Bill. Clause 21 relates to the Council of Europe Convention on Action against Trafficking in Human Beings, which provides that, once there are reasonable grounds to believe that a person is a victim of trafficking, states have certain obligations to that person. Under the Bill’s provisions, where a protection or human rights claim falls within subsection (5), it will be declared inadmissible by the Secretary of State and will not be considered in the UK.
Were the Bill to come into effect without any provisions to protect victims from the duty to remove that is set out in Clause 4, many of these survivors would be denied the opportunity to rebuild their lives and reclaim their autonomy, based purely on their route of entry. This would also apply in circumstances of trafficking, where individuals have been forced to enter the country illegally. The Bill will do nothing to break cycles of exploitation or help people to break free of modern slavery. Instead, it will feed the criminal networks that profit from the lives of vulnerable people, and it will undo the great work of the Modern Slavery Act.
Noble Lords will have received a briefing from Justice about its significant concerns that proposals to deport potential victims of modern slavery and human trafficking, without properly considering their claim, are incompatible with Article 4 of the ECHR and the ECAT. The Government say that there will be protections for those supporting criminal investigations and proceedings, but even those limited protections have been watered down in late-stage government amendments in the Commons. Clauses 21(5) and 28 require the Home Secretary to assume that an individual can co-operate with criminal proceedings from abroad, unless there are “compelling circumstances”. But, as Justice says, this is troubling because individuals with vulnerabilities are likely to struggle to co-operate with criminal proceedings from abroad. It faces a further presumption in favour of deporting potential victims of trafficking and modern slavery.
As the previous Independent Anti-Slavery Commissioner said during the Nationality and Borders Act 2022 debate, providing a sufficient recovery and reflection period is often essential to enable potential witnesses to co-operate with criminal proceedings—therefore, limiting such support
“will severely limit our ability to convict perpetrators and dismantle organised crime groups”.
We discussed this at Second Reading, when the Minister claimed that
“The modern slavery clauses are fundamentally about preventing dangerous and illegal crossings that pose a threat to public order … the national referral mechanism offers world-leading protections to victims of modern slavery, and we must be alert to the risk that these protections will be used to frustrate removal action. Last year, 17,000 referrals took on average 543 days to reach a conclusive-grounds decision, making modern slavery protections susceptible to misuse”.
He argued:
“The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions ending in 2019—that is, 50 people—to 73% in 2021 … Modern slavery laws are, therefore, an inextricable part of an immigration system that is open to being misused in order to block removals”.—[Official Report, 10/5/23; col. 1923.]
That is surely flawed logic. As Justice says, it is the Home Office-approved first responders who refer individuals to the competent authority if there are suspicions that someone is a victim of trafficking or modern slavery. Some 90% of the competent authority’s decisions last year were positive—in other words, decisions that there were reasonable grounds that someone was a victim of trafficking and modern slavery. Some 91% of conclusive grounds decisions were also positive, so where is the evidence that the system is being abused? Surely the Home Office’s own data highlights the overwhelming majority of credible victims of trafficking and modern slavery. As Theresa May made clear at Second Reading in the other place:
“The Home Office knows that the Bill means that genuine victims of modern slavery will be denied support”.—[Official Report, Commons, 13/3/23; col. 593.]
Furthermore, by closing the route to safety and support, the Bill risks strengthening the hands of trafficking networks. Traffickers keep people under their control with threats that they will not receive help if they reach out to the authorities. The Bill will substantiate that claim and further dissuade survivors from coming forward. We know that successful prosecutions of traffickers rely on the testimony and co-operation of those whom they exploit. As it stands, the Bill would have a devastating impact on survivors of modern slavery and human trafficking, offering them no recourse for support or protection, removing them from the country, leaving them entirely unsupported and leaving criminal gangs and traffickers unchecked.
My amendments first seek to remove the inclusion of people who claim to be victims of slavery or human trafficking from the provision in Clause 4 under which the Secretary of State must declare the claim inadmissible. My amendments to Clause 21 seek to amend the Bill so that a person who is in the process of being referred by a first responder to a competent authority, who awaits its reasonable grounds decision, who receives a positive reasonable grounds decision, who has a positive conclusive grounds decision or who is challenging a negative reasonable grounds or conclusive grounds decision may remain within the main referral system in the UK and subsequently receive modern slavery support, subject to Section 50A of the Modern Slavery Act, which includes protections from being removed.
These amendments essentially seek to ensure that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the NRM and have it duly considered. I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, I sat out the Second Reading debate in favour of a meeting of the Constitution Committee, in which we discussed our draft report on the Bill. That report is no substitute for the report of the Joint Committee on Human Rights—which I, for one, await with impatience—although I hope that it does deserve study. It discusses, in particular, the remarkable variety in the Bill of what might be called ouster clauses. Among them is Clause 4(2), which is the subject of Amendment 21, in the name of my noble and learned friend Lord Hope of Craighead, who cannot be here today, and to which I have added my name.
Some ouster clauses are aimed at restricting appeals or reviews from the decisions of a legally qualified tribunal. Examples include Clauses 49 and 51, which appear to be modelled on Section 2 of the Judicial Review and Courts Act 2022. The Supreme Court’s decision in the Privacy International case concerned an ouster of that nature.
More fundamental in their scope are the ousters in Clauses 4, 12 and 55. They bite not on claims that have already been adjudicated by tribunals but on claims that have never been adjudicated by any court or tribunal—and, in the case of Clause 4, any claim to the effect that removal from this country would be contrary not only to our laws against slavery and human trafficking, as we have just heard, but to the refugee convention, the Human Rights Act and the principles applied by the courts on judicial review. Such claims can be pursued, if at all—I am mindful of the jurisdictional limitations on the Human Rights Act—only after removal from the United Kingdom.
Through the kind offices of the Bar Council, I spoke this morning to a number of immigration law practitioners. They told me that so-called bring-backs, historically, have been vanishingly rare. Indeed, they are measurable in single figures. These are people who win their cases from abroad and then see those judgments implemented in the sense that they are brought back. Pursuing such a claim from out of country seems, for most people, to be a remedy which, in the time-honoured phrase, is not practical and effective but theoretical and illusory.
Clause 4 is supported by two buttresses: Clause 52, which prevents our courts issuing interim measures to prevent or delay removal; and Clause 53, which, if passed into law, will give parliamentary authority to Ministers to disregard interim measures issued by the European Court of Human Rights. A final nail is hammered into the coffin of judicial review by government Amendment 25A, which was debated in the previous group.
The Minister will no doubt say that the effect of the Clause 4 ouster is mitigated by the new suspensive claims provided for by Clauses 37 to 51 to deal with cases of serious harm and factual error. That is right, but only up to a point. The problem with those clauses is not only the punishing time limits and evidential requirements proposed in the Bill but their limited scope of application. For example, they afford no scope to challenge removal on slavery and human trafficking grounds, on private and family life grounds, or for the breach of elementary legal principles, such as prejudging and procedural error.
As my noble and learned friend Lord Brown of Eaton-under-Heywood referred to at Second Reading, the difficulty we face as a revising Chamber is that this degradation of existing judicial powers to keep the Executive in check is a feature of this legislation and not a bug. The Government’s theory of deterrence is based, in significant part, on the neutering of the courts. No doubt we will have to decide on Report whether we think that the objectives of the Bill, and the likelihood of achieving them, are enough to justify such a significant rebalancing of powers. If we think that they are not, we will have to decide whether to try to reverse the ousters in Clause 4 or to work with the grain of the Bill, however unpalatable we may find it, and seek to increase the range and feasibility of the new suspensive claims. In any event, it may not be controversial, but, in the words of a unanimous Constitution Committee:
“The cumulative impact of the ouster and partial ouster provisions in the Bill gives rise to very considerable constitutional implications”.
I wonder whether the Minister agrees.
Lord Dubs (Lab)
My Lords, it is a pleasure to follow the noble Lord. I will endeavour not to repeat some of the arguments that have already been put forward; it is a challenge that most of us have failed, and I will probably fail it too.
In the Bill, there is an unprecedented step that it would make any asylum application made by someone who arrives irregularly in the UK permanently inadmissible. If declared inadmissible, they cannot subsequently enter the UK’s asylum process. That means that they are out of the system for ever, simply because of the method by which they have arrived in this country. The United Nations High Commissioner for Refugees said that the Bill
“would amount to an asylum ban”,
as it would the extinguish
“the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how compelling their claim may be”.
The UNHCR goes on to say that, if other countries followed suit, we would see an end to refugee protection. That is a pretty dismal comment, but I have no reason to doubt that the UNHCR is accurate in its assessment. I repeat something which should be beyond argument: the UNHCR knows about the 1951 convention, and surely the UNHCR must be seen as the guardian of that convention. So if the Government are going to disagree with the UNHCR, they have to be on pretty firm grounds before they do so.
I will not repeat the conditions stated in Clause 2—we are familiar with them—but I will note that, even if people cannot be removed from the UK, their claims will still be permanently inadmissible. That is a significant change from the current inadmissibility scheme put in place after the UK’s exit from the EU as it also left the Dublin system. Under this scheme, if the UK Government believe that somebody did claim or could or should have claimed asylum in another country, their asylum claim could be potentially deemed inadmissible. However, the current scheme requires another country to have agreed to take the person before the inadmissibility decision can be made. The Home Office guidance on the inadmissibility procedures says that getting an agreement should take a maximum of six months in most cases. We are in a situation where there can be no progress for those individuals, except in this very negative sense.
The Home Office’s own statistics—I rely on the Refugee Council for some of this information—show how rare an occurrence this is. Between January 2021 and the end of December 2022
“of 18,494 applications that were potentially inadmissible only 83 inadmissibility decisions have been served”,
with only 21 removals. As a result, nearly 10,000 people have had their claims subsequently admitted into the UK’s asylum system following an unnecessary delay.
This Bill changes the current inadmissibility system by removing the requirement to have a removal agreement in place with another country before an inadmissibility decision can be reached. Instead, it makes any claim automatically and permanently inadmissible. It does not give the Home Secretary any discretion to consider the claim, and indeed the noble Lord in the previous speech challenged the Home Secretary’s lack of discretion in these procedures.
The Bill does very little to make it likely that more people will be able to be removed. Clause 5 allows people from 32 countries designated as safe countries whose asylum applications have been ruled inadmissible to be returned to their home country. Nationals of all other countries outside this list cannot be returned to their home country. This includes someone whose claim is highly likely to be successful, such as an Afghan or a Syrian, or someone whose claim could potentially be refused if it was actually processed. Instead, they can be removed only to one of the 57 third countries listed in Schedule 1 to the Bill. However, the agreement with Rwanda is the only removal agreement that the UK has in place that includes third country nationals, and the legal and tactical challenges faced by that scheme are well documented. Even if it becomes operational, it will not be possible to remove the thousands of people whose claims are deemed inadmissible to Rwanda.
We are in a real difficulty with this situation. The Home Office has yet to set out how many people it believes will be impacted by the Bill, as we have already discussed. However, given the current 0.7% success rate of removing people under the inadmissibility process, the Refugee Council estimates that at the end of the third year of the Bill between 161,000 and 192,000 people will have had their asylum claims deemed inadmissible but not yet have been removed. They will be unable to have their asylum claims processed, and therefore unable to work, and will be reliant on Home Office support and accommodation indefinitely, which is predicted to cost between £5 billion and £6 billion in the first three years. They will be stuck in a permanent limbo. I hope the Minister can explain how they can get out of that limbo, unless the Government suddenly produce a range of countries with which return agreements have been agreed.
This is a pretty miserable clause in a miserable Bill. I believe that this amendment could go some little way towards making the Bill somewhat less bad than it is.
Lord Carlile of Berriew (CB)
My Lords, I have signed some amendments which were tabled by my noble and learned friend Lord Etherton, who has asked me to apologise for his absence today. I am not going to speak to those in any detail because, as is typical of my noble and learned friend, the explanatory statements which he has added to those amendments say it all, and make them very easy to understand.
What concerns me about this debate is that it has a degree of abstraction which perhaps conceals what really lies in front of the debates we are having. Recently, I went to a meeting to discuss asylum and refugee status in one of our cities. Present at that meeting was a woman in her 30s, with three children, who is living in a hostel in that city. She has now been waiting for 10 years—with her children, some born after her arrival here—to know the result of her wish to be treated as an asylum seeker.
The Minister earlier today—it seems like many hours ago but it is probably only about two and a half—referred, when he was answering an intervention, to an emergency having occurred. If that is an emergency—because this Government have been in place for well over 10 years—then it makes the creation of a baby elephant seem like the speed of sound. It has happened on their watch. Why? In truth—and it is long before the Minister became involved in these issues and became a valued Member of your Lordships’ House—they did not do what they needed to do to anticipate what was going to happen. That is why cases such as that of the woman I referred to took place.
In another city, I met a young man, now in his mid-20s, who had arrived in the United Kingdom illegally in the back of a lorry. He climbed out of the lorry and had nowhere to go. He slept in a doorway and the next day he did what he was told was a good thing to do and went to the local police station and asked the police for help. As it happens, they were very sympathetically disposed to him. He was then about 17 and a half. He was refused permission to remain in this country and he was refused asylum. He appealed and his appeal was allowed. I am delighted to say that the reason he came to see me was that he is about to start a career as a barrister. This is obviously a very good thing for anyone to do, as I would say, and I know a number of noble and learned friends, including the Minister, will agree with me when I say that. I am trying to discourage him, as a sort of mentor, from doing only asylum work because there is so much more to do as a barrister. I may be winning that battle. That is the actuality we are dealing with in these cases.
What we are facing here, to use the Minister’s words, is apparently an emergency to oust the use of judicial review. Before I got up to speak, we heard three really superb speeches. I do not want to repeat everything that was said but I agree with it all. All those speeches demonstrated, I suggest, that the ouster of judicial review, as has been the approach of the courts and indeed of Parliament over the decades, should happen only very rarely. It is not unheard of, but it should happen only very rarely when the necessity to oust judicial review is demonstrated and, above all, when it is fair and proportional to do so. Surely the ouster of judicial review is neither fair nor proportional in a situation in which we find many cases coming before the courts but it is not the fault of the real people who want to go to those courts. Let us not forget that a very large number of that cohort are allowed asylum and refugee status when they go to the courts. This is not an unworthy cohort going to court for the sake of it; people often win their cases. Do we in your Lordships’ House, with so many experienced people, particularly those who have seen the courts in action, really want to oust that activity of the courts?
Let us look at the figures for a moment. I know that there are many cases in tribunals. I have never had the advantage of serving as a member of the asylum et cetera tribunal or Upper Tribunal but I have had the privilege of serving as a deputy judge in the Administrative Court for many years, dealing with many asylum cases. I think everybody imagines—I wish to disabuse the non-lawyers in the Committee—that these cases are all run into the ground by long-winded lawyers such as myself who try to make the cases run for ever and ever in order to enhance our fees; the sort of Daily Mail “sidebar of shame” view of what lawyers do.
Let me tell your Lordships what happens in the Administrative Court. A judge turns up for a day’s sitting and often starts with paper applications. About 11% of the cases have already been filtered out as being totally without merit and do not even come before the judge doing the paper applications—the paper apps, as they are called. The judge then spends the day in his or her judge’s room dealing with the paper apps, usually dealing with about 12 in a day—maybe a few less, maybe a few more. They take therefore very little time at all.
Lord Bach (Lab)
My Lords, we have heard some very good speeches on this group already. I want to revert to the speech of my noble friend Lord Hunt of Kings Heath and the points he made about trafficking and slavery. I have to say that the last speech and the speech of the noble Lord, Lord Anderson, impressed me immensely. I was on the same review of the Bar Council earlier this morning and I can confirm, for what it is worth, exactly what the noble Lord, Lord Anderson, said about the dangers of ouster in the Bill. I am not going to speak about that.
I should say that I have not spoken on the Bill before: I was down to speak at Second Reading but I decided that 84 or 85 speakers was probably just about enough. My view, I am afraid to tell the Minister, like those of so many who are taking part in this Committee, is that it is an absolutely disgraceful Bill and I cannot believe that any British Government of any complexion are bringing it forward.
I put my name down in support of my noble friend Lord Hunt’s amendment. I have little to add to his speech except that it appears to me that it is an area where the Government can and should give ground pretty easily. It is surely beyond ridiculous that important legislation brought in with practically universal support as recently as 2015 should be undermined so fundamentally by a Government of the same party; so much so that, as has been mentioned, the Prime Minister at the time, responsible in many ways for the bringing in of the Act, has expressed her opinion in another place that the Bill’s provisions
“will drive a coach and horses through the Modern Slavery Act”.—[Official Report, Commons, 28/3/23; col. 886.]
I was a police and crime commissioner at the time the Act was effectively coming into force—I started a year after 2015—and police support for the assistance that the Act gave in this very difficult area of law, particularly difficult in prosecuting and convicting very clever and very bad criminals, was absolutely evident. The police, certainly where I was and I suspect more widely, were pleased with the Act. They knew it meant harder work, but the chance of actually locking up dangerous men—and women, no doubt—was added to appreciably. Enthusiastic and positive meetings and arrangements were held and, while it is never going to be easy to catch the wicked criminals behind trafficking, little did any of us involved in those discussions think that, only a few years later, the difficult task facing the police and others in arresting, prosecuting and convicting these villains would be made more difficult—I would say much more difficult—by proposed government legislation.
Make no mistake—this is my final point—that the Government will not easily be forgiven, it seems to me, by a very large portion of society if the improvements so recently given are effectively removed, with the result that fewer victims are helped and fewer criminals are punished.
Lord Alton of Liverpool (CB)
My Lords, the noble Lord, Lord Bach, referred to the effects on the modern slavery legislation. In a sense, just as the noble Lord, Lord Carlile, talked about this being an ouster of judicial review, so, in some respects, it is an ouster of the Modern Slavery Act 2018 as well. Why is this necessary? The Home Secretary says that the system is being abused, to justify removal of the protections for victims of trafficking and modern slavery. In response to that, both Sir Iain Duncan Smith MP, former leader of the Conservative Party, and Theresa May, former Prime Minister, have said in terms that there is no evidence to justify that claim. That is why it is right that the noble Lord, Lord Hunt of Kings Heath, has moved this amendment. He made a terrific speech and I fully endorse and support everything he said.
The amendment seeks to amend the Bill so that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the national referral mechanism and have it considered. I ask the Minister for one potential exception: if he cannot accept the amendment that has been moved by the noble Lord then, reverting to the previous group of amendments, what about the situation of children in those circumstances? Are they going to be included in a catch-all, or will the Minister accept that there should at least be an exemption for them?
My noble friend Lord Anderson talked about the anticipated report of the Joint Committee on Human Rights. I do not think he will have long to wait for that, but what are already available are the statements given to that committee in public evidence sessions. I was very struck by one, and there is an echo here of something that my noble friend Lord Carlile referred to earlier, which is the personal effects on individuals. We heard in camera from a young woman who had been trafficked into this country and used by a family from the Middle East literally as a modern-day slave. She escaped and managed, dressed just in nightclothes, to find her way to central London where, in Piccadilly Circus, she was helped by a volunteer who introduced her to other members of the Filipino community. I am happy to say that she has been able to make a life for herself as a result of a referral to the national referral mechanism. Take that away from people and what opportunity will they have to make good lives for themselves or to have any kind of safety? At least let us have a disapplication for children and give them the opportunity to be referred through the national referral mechanism.
Finally, since I said I would try to be brief and concise, I would be interested to hear whether the Minister has had a careful look at the Council of Europe Convention on Action against Trafficking and the obligations we are signed up to. Does he recognise the view that has been expressed by many who know far more about this than I do that we will be in breach of ECAT if this goes through in its present form, and also that we are likely to be in breach of Article 4 of the ECHR in its prohibition on slavery? Are those questions that the Minister and his officials are looking at seriously? Have they attached sufficient weight to them? What is his view about the exemption of children?
Lord Morrow (DUP)
My Lords, I shall speak briefly to Amendment 19A in the name of the noble Lord, Lord Hunt, and congratulate him on a very informative and excellent speech. I said at Second Reading that the Bill
“should exclude those who are already subjected to abuse through the heinous crime of modern slavery”
and quoted the former Prime Minister, who had said in the other place:
“It has always been important to separate modern slavery from immigration status”.—[Official Report, Commons, 26/4/23; col. 809.]
I said that the Bill was
“using a sledgehammer to crack a nut”—[Official Report, 10/5/23; col. 1902.]
and that remains my position today.
We know that genuine victims will be penalised through the Bill. There are many amendments tabled, either to mitigate the harm, or to seek much more analysis before Clauses 21 to 28 can come into effect. Those will be debated in a later group, and I hope to speak then too. However, Amendment 19A gets straight to the heart of the matter. Clause 4(1)(c) says that the duties to remove people who have arrived by irregular means should apply regardless of whether a person claims to be a victim of modern slavery. Amendment 19A would remove that presumption.
We should be debating whether modern slavery victims should be within the scope of the Bill because that question speaks to our values and our international obligations. Our long-held values have said that these individuals need safeguarding, not penalising. The UK has been seen as a leading light in how it has responded to human trafficking. This Bill would take us significantly down the league table. Overnight, our world-leading reputation has been tarnished because we have decided that to stop the few, our obligations to the majority should cease.
I am sure the Minister will tell us that the Government recognise that these are exceptional circumstances and for that reason have included a sunset clause. Lest we should be reassured by that, let us consider, first, that the sunset clause can be extended. Secondly, in the meantime, thousands of victims will not get support, and will be detained and removed. One of the Council of Europe’s committees said that the Bill endangered victims. We are endorsing that as acceptable. Thirdly, our Article 4 obligations under the European Convention on Human Rights include
“a legislative and administrative framework to prevent and punish trafficking and to protect victims”.
Article 15 makes it clear there is no derogation from this requirement in a time of emergency. But that is what the Government are arguing—that “exceptional circumstances” allow us to wipe away the protections that are in place across the UK for these exploited individuals.
It is no wonder that there are serious doubts about the UK meeting its international obligations. I urge the Government to heed the warnings and rethink, and I commend the amendment of noble Lord, Lord Hunt, to the Committee.
Baroness Butler-Sloss (CB)
My Lords, I am co-chairman of the APPG on Human Trafficking and Modern Slavery and I am the vice-chairman of the Human Trafficking Foundation. I bitterly regret not putting my name to the amendment of the noble Lord, Lord Hunt of Kings Heath, which I was a bit slow to read.
I want to make three points. I entirely agree with what has been said already by noble Lords. First, on the point that the noble Lord, Lord Morrow, makes about the Act and the reputation, as it happens, Frank Field MP—now the noble Lord, Lord Field of Birkenhead—chaired a small group of two MPs and myself who advised Theresa May as Home Secretary on whether there should be a modern slavery Bill. More recently, the noble Lord, Lord Field, another MP and I wrote a report on how the Modern Slavery Act had managed over the years. It has already been said that this Bill drives a coach and horses through the Act. It is tragic that it is the same Conservative Government—a different Prime Minister, but the same Conservative Government—who, having put through one of the greatest and most innovative of Acts of Parliament, which was applauded around the world, now choose to behave like this. Of course, it will very adversely affect our reputation, as the noble Lord, Lord Morrow, has just said. That is really very sad.
Baroness Hamwee (LD)
My Lords, whenever there is a reference to the ouster of the courts and tribunals in the context of this Bill, I think how ironic it is that we heard from the Government that they cannot give a certificate of compatibility with the Human Rights Act because it has not been tested by the courts.
Here again, it seems to me that we are conflating modern slavery and trafficking with immigration. That is misconceived and it is immoral. My name is on a number of the amendments of the noble Lord, Lord Hunt—not all of them, but this was due to the nature of the process, not any disregard of those amendments. An awful lot of organisations were continuing to suggest amendments pretty much as we walked into the Chamber.
The concern about this is very widespread. The amendments in this group are going in the same direction. Everyone who has spoken shares a concern about victims being scapegoated and their positions not understood. I have so much admiration for people such as the Filipino—I assume a domestic servant—the young man mentioned by the noble Lord, Lord Carlile. What people manage to do with their lives after the experiences they have gone through leaves me almost lost for words and feeling huge responsibility to try to do my best for them, even if it is not a very good best. We heard earlier today about the arrangements that the Government have for returns. The very fact that the Government have recently been negotiating with Moldova, Bulgaria and I do not know who else, about co-operation to prevent trafficking—I think it is trafficking and not just, if you can use the word “just”, smuggling—indicates the Government’s clear awareness that this is all happening. But negotiation is not a result.
The Government must not ignore that asylum seekers smuggled in are very vulnerable to exploitation as a result of the Government’s own policies. I may, at some other time, if I can and if she will allow me, quote the very apt and succinct description by the noble and learned Baroness, “escape does not mean exit”. People have said this at greater lengths during proceedings on this Bill, but that really does sum it up.
Not for the first time, those of us who have added our names to the amendment in the name of the noble Lord, Lord Dubs, seem to be a little band who work together. I will not repeat everything that has been said, but the Secretary of State sets rules for other people—in this case, very vulnerable people—so there must be consequences if the Secretary of State does not observe or fails the rules she has set.
The British Red Cross and others have been very clear about the effect of limbo on physical and mental health. It is not surprising that people now disappear into the black economy, exploitation and destitution. They must feel that they are being treated as if they are not human. Limbo should not be indefinite. I do not know how the provisions fit with the Home Office’s own guidance that the inadmissibility process, which currently does apply in some circumstances, must not create a lengthy limbo where delaying means the claimant cannot advance his or her protection claim.
Clause 4(3) deals with claims which are declared inadmissible. I ask again: what data will be published about claims which have been declared to be inadmissible? Can the Minister confirm that the Home Office will publish details, particularly the numbers, of declarations of inadmissibility? I cannot see that they will be regarded as claims which are refused because they never get to the stage of being considered. It is essential that we know how this Bill is working—if that is the right way to describe how the Bill, and maybe an Act, will proceed.
Baroness Jones of Moulsecoomb (GP)
My Lords, I signed the intention to oppose the Question that Clause 4 stand part of the Bill.
I do not often say anything good about this Government but they do, at times, think outside the box. They really do think up novel practices and novel moves in all sorts of areas. I admire massively the people who have gone through this Bill and put amendments forward. Sometimes I have time to do that myself on Bills. This particular clause is so bad—how can we improve it? There are two particularly dangerous proposals, which we have already heard. The first is that the courts will not be able to pause or prevent a deportation, even where that deportation will be clearly unlawful. Secondly, the Government can, by diktat, declare a person’s human rights as inadmissible. Where does that come from? Who thought that up? It is just incredibly creative. As it is novel practice, it is also dangerous. A precedent is being set that the Government can simply rule that some people do not have any human rights and that a Government can act unlawfully without any intervention from the courts. Human rights are for everyone—which is something this Government seem to forget—or they are not human rights. The courts must be allowed to protect those rights against the Government.
We have to stop this illegal Bill. I see no option but to start voting out chunks of it. If we can possibly intervene at the end, we should vote all of it down.
Lord German (LD)
My Lords, I have given notice of my intention to oppose this clause standing part. I was also able to meet the Bar Council this morning, and it was very interesting to hear its views about current practices and the difficulties following through from this law that might arise.
I want to address two or three issues in this clause which set it apart. I of course support wholeheartedly the human trafficking amendment. I talked at Second Reading about a case involving a young person who, if the current Bill were to become an Act, would be placed in perpetual slavery or alternatively deported to somewhere she has no knowledge of and no friends or people she could communicate with.
The two issues I will look at are the impact this will have upon this country and whether the Minister is going to be able to tell us whether or not the fears that people have expressed are actually true. One of the first ones is the fear of people living in limbo for years and years. The second one is about whether it is disgraceful lawyers and traffickers who have caused the problems we are now facing. I am very grateful to the noble Lord, Lord Carlile, for debunking the issue of lawyers having that responsibility put upon them by what he called the Daily Mail sidebars.
It is important to realise that there are a significant number of issues sitting behind this clause which will affect people profoundly. Essentially, this clause is the Government’s trump card upon which it can play: there is no way you can come to this country if you are one of the vast and overwhelming majority of people seeking asylum from the fear of living in countries which are under siege or war, or where people’s reputations are at risk.
We hear today that government papers which have been put aside—unless some people have spotted them—say that in the first two years between £3 billion and £6 billion extra will be required to make sure that they can cope with the number of people living in limbo. These sorts of government papers do not just fall into hands, because somebody else outside of government has written them. The figures themselves must have some credibility. They hold truth and light for those who believe that there is no way that people can be sent elsewhere under this Bill, given the limited circumstances.
I ask the Minister to repeat his claim that there is no limit on the number of people who can be sent from this country to Rwanda. No limit, he said—does that mean 150,000 or 170,000? Is that the case? We heard this morning from the lawyers who were dealing with the very small number of cases attempting to bring people back from Rwanda who had had their claims misheard that the Government did not tell them about the circumstances surrounding their existence in that country. One of the barristers concerned found out that it is an offence in Rwanda to speak out against the Government. That issue was the one that played a big hand in them being able to work around the legislation to be able to bring back incredibly small numbers of people to our country.
The third issue is the assertion by the Minister earlier that this is an emergency. If it is an emergency then obviously it is an emergency that has been going on for many years. The claim by the Prime Minister this morning that the policy we are talking about is already working is not borne out by the figures that the Government themselves provided on 25 May. Those are the only figures that are available to see, and this Government have an adverse nature to giving figures to us in any other way.
Lord Kerr of Kinlochard (CB)
My Lords, sensing an overwhelming desire in the House to discuss the National Health Service (Dental Charges) (Amendment) Regulations, I shall be very brief. I do not know whether we still do it, but we used to send some people to jail on conviction at His Majesty’s pleasure. They had, of course, their day in court. They had access to legal support. Had they been convicted, they could have appealed. What Amendment 23 is trying to do—the amendment from the noble Lord, Lord Dubs, to which I have added my name—is ensure that we are not sending asylum seekers whose cases we are refusing to consider into detention at His Majesty’s pleasure; that is, an indeterminate sentence. That is how I read the Bill and how the noble Lord, Lord Dubs, reads the Bill. That is what the Government have in mind. I cannot believe that it is right to send people into limbo of that kind.
I do not know whether the right answer to the question is the one in the amendment: a six- month time limit. If the Government have not found somewhere to send them and if they have not found someone to take them, they must consider the case under the Immigration Rules after six months have passed. It seems to me a reasonable proposition, but perhaps the Government have another one. One way or another, one has to avoid creating the situation where people are in limbo outside our systems—in effect, stateless because they cannot go back to their own home for fear, and we are keeping them locked up, so they cannot take part in our society. We cannot let that run for ever. We cannot pass that into the law of the land as a desirable, or even a permissible, situation. The Government must come up with some answer if they do not agree with the noble Lord’s amendment, as I do.
Lord Horam (Con)
My Lords, before we move on to the interesting dinnertime discussion, I just want to raise a point as a non-lawyer about Amendment 20, in the names of the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and the noble Baroness, Lady Chakrabarti. Its purpose is to
“enable an application for judicial review to be made while the applicant is in the UK”.
We had a very interesting point from the noble Lord, Lord German, about what he described, fairly accurately, as Daily Mail sidebar accusations about the nature of judicial review. It was very helpful to have that short seminar from the noble Lord, Lord Carlile, on what actually happens in the Administrative Courts and how it is not a question of lawyers making lots of money out of rather dodgy cases. I think he is right. Although I have never been to the Administrative Court, but I am sure he reflected that very faithfully.
Surely, however, if this amendment is passed, it will drive a coach and horses through the main purpose of this Bill, which is to deter people from crossing the channel in small boats. If you then give them the opportunity when arriving in this country in a small boat of immediately seeking judicial review, and that is in the Bill designed to stop them coming across the channel, will that not destroy the whole purpose of the Bill? I merely put that question as a non-lawyer; it seems to me inimical to the very heart of the Bill, whatever one’s view.
Lord Carlile of Berriew (CB)
I am grateful to the noble Lord for giving way, but I just want to ask him this question. Would he be happy about legislation being passed that meant that people who had a justifiable claim to asylum were never allowed to pursue that claim to asylum—that is, a justifiable claim under international and existing United Kingdom law?
Lord Horam (Con)
No, I am just saying that if the amendment were accepted, it would be entirely inimical to the purpose of the Bill.
Lord Purvis of Tweed (LD)
My Lords, I think, to some extent, that that is the point of the amendment. I am scared of dentists, so I have no desire to rush into a debate about dentistry, but I was waiting because at least from the Conservative Benches we heard a speech. I was counting how many. Every one had voted for this Bill, but it is amazing how many are coy when it comes to defending what is going to be the reality: that if a young woman is trafficked from a war zone, is raped on the way and arrives in the UK having been lied to, the response is no longer what had been the case; namely, that a first responder in assessing her needs would refer her to protection—the British way. Now, the first responder will say, “You have no rights under modern slavery or trafficking legislation in the UK at all. Not only that but you will be detained and you will be deported”. So, please, can we have some defence of this from the Conservative Benches? If they are not going to defend it, please do not vote for it. Only vote for something that you are willing to defend. It might just be that if the whole purpose of the Bill, as the noble Lord, Lord Horam, said, is deterrence, why stop here? If it is going to be deterrence for an emergency, why stop at this measure? If the Government act in an emergency on a situation of great importance and it is to deter, should it not be on the basis of evidence?
We heard earlier from the Minister saying that one person’s evidence is another person’s assertion. He did not say exactly that; I am putting words into his mouth so that I can disagree with them, but he basically said, “Well, it’s our view that this is the case”.
It was in 2019 that the Government promoted with fanfare a £10 million policy centre. The government press release said:
“Efforts to uncover the true scale of modern slavery, expose more trafficking networks and better inform our action to stamp out these crimes have been boosted today following the government’s investment of £10 million to create a cutting-edge Policy and Evidence Centre for Modern Slavery and Human Rights”.
That was universally welcomed. The Government said that our response to this crisis would be evidence-led and that we would then act on it. There was universal support for that.
That centre—the Modern Slavery and Human Rights Policy and Evidence Centre—which is still receiving Home Office funds in 2023-24 to do this job and inform the Government, says of the Bill:
“Thousands of potential victims of modern slavery may be denied protections by the modern slavery provisions in the Bill. This will include people for whom their entry to the UK is an integral element of the criminal offence of trafficking committed against them”.
It goes on to say:
“The need for these provisions is predicated on the UK Government’s assumption that people are ‘abusing’ the modern slavery system, and that the system is an incentive for illegal migration to the UK. The available evidence questions both of these assumptions”.
Finally, it says:
“The modern slavery measures in the Bill are incompatible with the UK’s obligations”.
I would rather drive a coach and horses through proposals from the Government that are not based on evidence and put in their place evidence-based policies that are likely to work. I declare an interest: I have supported schemes in the Horn of Africa through to the Gulf which are trying to support victims of human trafficking and forced labour.
The Bill will not only not work; it will undermine our reputation around the world. That is shameful. It is not only shameful for our global reputation—I hope we can rebuild that—but it is even more shameful for that young woman who was lied to, trafficked to the UK and would now effectively be a double victim.
Lord Paddick (LD)
My Lords, we support all the amendments in this group. As many noble Lords have said, victims of slavery or human trafficking should not be further victimised by the provisions of the Bill. As many briefings with which noble Lords have been provided—for which I personally am very grateful—have pointed out, these provisions play into the hands of traffickers and perpetrators of modern slavery. Victims will face the dilemma of further exploitation or deportation, and the criminals will use the provisions in the Bill to enforce their hold on their victims, as the noble and learned Baroness, Lady Butler-Sloss, said. Speaking as a former police officer, I say that it is difficult enough to get victims to give evidence in court, let alone victims of modern slavery or trafficking who have been deported to another country.
As the noble Lord, Lord Hunt of Kings Heath, said, referrals to the national referral mechanism are made by officials, making abuse of the system unlikely. That is reinforced by the fact that a very high proportion of the claims are actually supported.
For the reasons the noble Lord, Lord Anderson of Ipswich, gave, we agree with the conclusions of the Constitution Committee that the cumulative impact of the ouster and partial ouster provisions in the Bill give rise to very considerable and, I argue, dangerous constitutional implications. As the noble Lord, Lord Carlile of Berriew, has said, this could have potentially fatal consequences for individuals.
The effects on physical and mental health of the Home Office’s policies of placing people in limbo are well documented. We support the amendment in the name of the noble Lord, Lord Dubs, to limit the damage by placing a six-month limit on refusal to consider a protection claim or human rights claim. In doing so, we agree very strongly with the comments of the noble Lord, Lord Kerr of Kinlochard. For the reasons my noble friend Lord German has explained, we believe that this clause should also not be part of the Bill.
So far as emergencies are concerned, is it not the case that the only emergency is the huge backlog of undecided asylum claims—and that it is an emergency which is entirely the responsibility of the Home Office?
The Lord Bishop of Coventry
My Lords, I apologise for not being able to speak previously on the Bill, but I support Amendment 23 in the name of the noble Lord, Lord Dubs, on behalf of the right reverend Prelate the Bishop of Durham, who has added his name to this little band, as the noble Baroness, Lady Hamwee, referred to them. I have been holding back in the hope that he would land, but his aircraft has been delayed.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group focuses on the disregarding of protection claims, trafficking claims, human rights claims and judicial review, as outlined first in Clause 4. This is quite a large group, with different strategies to remove or edit Clause 4 to remove the duty on the Secretary of State to declare human rights claims and other claims inadmissible if the person arrives into the UK illegally.
My noble friend Lord Dubs has tabled Amendment 23, which would mean that a protection or human rights claim must be considered if the person has not been removed within six months. In his very eloquent speech he said that it would have the effect of trying to reduce the number of people who are effectively in a permanent limbo—he gave the figure of 160,000 who are stuck in this status. As he said, the amendment goes a little way to ameliorating this position. I am glad that the right reverend Prelate the Bishop of Coventry supports my noble friend.
My other noble friend Lord Hunt’s series of amendments beginning with Amendment 19A would ensure that potential and recognised victims of trafficking would not be removed before they got the opportunity to submit an application to the national referral mechanism and have it considered. His amendments would remove trafficking from the list of claims that the Secretary of State can ignore, so although they would help trafficking victims, they would not help others making claims under different legislation, which would remain on the list. In my noble friend’s speech he referred to the Liberty brief, which I also found extremely helpful, and to the statistics there about the increase in the NRM claims we have seen over recent years, to which the Home Office makes particular reference. My noble friend made the point that the Bill as currently drafted would dissuade victims of modern slavery from coming forward.
As a youth magistrate, I very much recognise the point about the modern slavery system and the national referral system getting completely overwhelmed by the number of referrals into that method of checking for modern slavery. Certainly, in my experience as a youth magistrate, it almost logjammed the system of reviewing what I might call normal criminal cases referred into the NRM, which were sometimes stuck in that system for literally one or two years.
The noble Lord, Lord Carlile, gave a couple of very appropriate anecdotes. He did not particularly explain the amendments in the name of the noble and learned Lord, Lord Etherton, but, as he said, they were fully explained by the noble and learned Lord himself. I think the central point that the noble Lord, Lord Carlile, was making was that the people who find themselves making appeals are not an unworthy cohort. They very often win their claims, so surely we should be reinforcing and backing up the systems we have signed up to in international law for protecting claims of legitimate claimants.
I think all other noble Lords supported my noble friend Lord Hunt’s amendments; in fact, most noble Lords supported all the amendments in this group. I just want to make a particular aside to the noble Lord, Lord Morrow, who also supported my noble friend Lord Hunt. As he will know, he facilitated a trip for me to Ballymena district court, where I sat in on a youth court. I found it very interesting that the Modern Slavery Act has not been enacted in Northern Ireland. I have tried to get an explanation for that but, as far as I know, I have not received one. Although I am sure that the noble Lord supports the Modern Slavery Act, I find it surprising that the Act has not been enacted for young people in Northern Ireland.
As I said, I think all noble Lords who have spoken on this group of amendments have supported them. In many ways they go to the heart of the Bill, because it is where the Government are seeking to step away from some of the commitments they have made in a number of treaties and in a number of different forums over many decades. It is for the Government to justify why they should take such a radical step.
Lord Murray of Blidworth (Con)
My Lords, Clause 4 provides that if a person meets any of the four conditions set out in Clause 2, regardless of any claim made by an individual, including a protection claim, a human rights claim against their country of nationality or citizenship, a claim as a victim of modern slavery or human trafficking, or an application for judicial review in relation to their removal, they will still fall under the duty to remove.
As such, if a protection or human rights claim is made, this will be declared as inadmissible. Inadmissibility is a long-standing process and is explicitly provided for in UK law, most recently in the strengthened provisions in the Nationality and Borders Act. So although the noble Baroness, Lady Jones, was praising the innovation of the Home Office, the concept of inadmissibility is indeed a long-standing one that appeared in immigration legislation from the turn of the millennium.
As the noble Lord, Lord Ponsonby, correctly identified, Clause 4 is critical to the Bill. By expanding the scope of existing inadmissibility provisions to apply to anyone who has arrived illegally to the UK, the Government’s intention is made clear: namely, that those who fear persecution should claim asylum in the first safe country they reach and not put their lives at risk by making unnecessary and dangerous journeys to the UK.
We know that some people make spurious claims in a conscious attempt to frustrate their removal. Provisions in Clause 4 will restrict the right to challenge the decision to remove those who enter the UK illegally. In doing so, it will put a stop to the endless merry-go-round of legal challenges that those with no right to be here use to thwart their removal. In 2022 there were 60% more small boat arrivals—45,755—than in 2021, when there were 28,526. Our asylum system is consequently under significant pressure, and with this inexorable rise in the number of illegal arrivals adding more pressures to our health, housing, educational and welfare services, the Government must take action and prioritise support for those who are most in need.
We remain committed to working with the United Nations High Commissioner for Refugees to identify those who are most in need so that the UK remains a safe haven for the most vulnerable. Once illegal migration is under control, we will create more safe and legal routes following consultation with local authorities, and that will be subject to an annual cap set by Parliament—we will come on to debate those provisions later in Committee.
The Bill will send an unequivocal message that if you come to the UK on a small boat or via another illegal route, you will never be able to return to the UK or build a life here. It is only right that we prioritise people who come here safely and legally, and it is unfair that those who enter illegally should benefit over those who play by the rules. If people know that there is no way for them to stay in the UK, they will not risk their lives and pay criminals thousands of pounds to get here.
Having set out the purpose of Clause 4, I turn to the specific amendments. First, Amendment 19A and the other amendments in the name of the noble Lord, Lord Hunt of Kings Heath, effectively seek to exclude all potential victims of modern slavery from the duty to remove and the associated detention powers until a conclusive grounds decision has been made following a referral to the national referral mechanism, or NRM.
There is no escaping that, regrettably, the NRM affords opportunities for those who enter the UK unlawfully to frustrate their removal. In 2022, there were around 17,000 referrals to the NRM—the highest annual number to date and a 33% increase on 2021, when there were 12,706, and a 625% increase on 2014, when there were 2,337. The average time taken from referral to conclusive grounds decisions made in 2022 across the competent authorities was 543 days. Given these decision times, it is self-evident that, were the noble Lord’s amendments to be made, the intentions of this Bill—namely, to deter illegal entry and to allow for the swift removal of those who do enter illegally—would be undermined.
Lord Purvis of Tweed (LD)
I am grateful to the Minister. I am listening very carefully to what he is saying regarding the loophole. My understanding is that a referral to the NRM can be made only by a first responder authorised by the Home Office; that first responders have to be certified for their professionalism by the Home Office; and that the referral mechanism goes to a dedicated individual within the Home Office. Why is the Home Office so incompetent that it is allowing this system to abuse itself, given the fact that only the Home Office and first responders can refer?
Lord Murray of Blidworth (Con)
It is not the Home Office abusing itself—to use the noble Lord’s phrase. The reality is that it is the large number of claims made by people advised to make claims, often at the last minute, in order to delay removal. When people are referred to the national referral mechanism, they give an account of slavery that then requires investigation. A threshold is applied that means that the allegations are looked into, and the number of people making applications now has given rise to the length of time to determine those claims.
If I may, I will respond to points raised by the noble Lords, Lord Alton and Lord Morrow.
Lord Murray of Blidworth (Con)
I will come back to the noble Lord, Lord Purvis, at the end. I can confirm that removing this incentive is compliant with our international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT. Indeed, ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order. There is a clear and unprecedented threat to public order through the loss of lives and the pressure on public services that illegal entry to the UK is causing. I again remind noble Lords that the number of small boat crossings has risen from 8,500 in 2020 to over 45,000 last year. We will have a fuller debate in respect of the modern slavery provisions when we reach Clauses 21 to 28 in Committee, but I cannot agree to the noble Lord’s proposition that the foundation of those provisions in subsection (1)(c) be removed from the Bill.
Amendment 20, spoken to by the noble Lord, Lord Carlile, seeks to strike out subsection (1)(d), the effect of which would be to enable any judicial review to put a block on removal until the legal proceedings had been concluded. It seems to me that the key words—and perhaps I could invite the noble Lord to refer to the Bill—are in Clause 4(1)(d), which relates to an application for judicial review in relation to their removal. As my noble friend Lord Horam indicated, such an amendment would again undermine a key feature of the scheme provided for in the Bill. We must stop the endless cycle of late and repeated challenges that frustrate removal under the current law. Of course, it is right to say, too, that there is no general block on non-suspensive judicial review provided for in the Bill.
The Bill provides for two types of claims that would suspend removal, and we will come on to those in due course in Committee. Those provisions provide sufficient remedies to challenge a removal notice and afford the necessary protection to a person suffering serious and irreversible harm were they to be removed to the specified third country. All other legal challenges, whether on ECHR grounds or otherwise, should be non-suspensive. Therefore, Clause 4(1)(d), read with Clause 52, does not oust judicial reviews; those provisions are simply making it clear that any judicial review cannot block removal.
As regards Amendment 21, tabled by the noble and learned Lord, Lord Hope of Craighead, and spoken to by the noble Lord, Lord Anderson, I have already indicated that inadmissibility is not a new concept. It has been a feature of the UK asylum system for some time and is already enshrined in the Nationality and Borders Act 2022. While I welcome the Constitution Committee’s scrutiny of the Bill, I cannot accept its characterisation of the provisions as having significant rule of law implications. What does have significant implications for the rule of law, I suggest, is tens of thousands of people arriving on our shores each year in defiance of immigration laws. These individuals should be claiming asylum in the first safe country they reach, and, in these circumstances, it is legitimate to declare any protection claims inadmissible to the UK system.
The noble Lord, Lord Anderson, asked what would happen to an asylum or human rights claim that had been declared inadmissible, but where the person had had their factual or suspensive claim accepted. In such a case, the person’s claim would be considered under the existing law. That might include existing inadmissibility provisions. I again remind the Committee that inadmissibility is a long-standing process intended to support the first safe country principle. It is an established part of the international asylum procedures applied across the EU and specifically provided for in UK law, most recently in the strengthened provisions introduced in the Nationality and Borders Act 2022.
Lord Anderson of Ipswich (CB)
I am grateful to the Minister. In the circumstances that he accurately sets out, could a declaration of inadmissibility be reversed so that the human rights claim or the protection claim could proceed in the normal way?
Lord Murray of Blidworth (Con)
The provisions of the Bill in relation to that are a little involved, and I will write to the noble Lord.
Amendment 23 in the name of the noble Lord, Lord Dubs, also deals with inadmissibility. It seeks to provide for asylum and human rights claims from those who have not been removed within six months to continue to be admissible within the UK. In effect, the amendment seeks to perpetuate our current broken asylum system. Again, it seeks to chip away at and put holes into the scheme provided for in the Bill, undermining its coherence and effectiveness. This amendment would regrettably again encourage illegal migrants to use every tactic to frustrate their removal, in the knowledge that after six months their asylum claim would be processed. Moreover, the amendments would unfairly result in individuals who have arrived illegally in the UK being prioritised alongside those who have availed themselves of our safe and legal routes—something which, I suggest to the Committee, is manifestly unfair.
The Bill must send a clear message that if you come to the UK via an illegal route, you will never be able to return to the UK or build a life here. The benefits of settlement should be open only to those who abide by our rules. The whole construct of the scheme is to enable illegal migrants to be removed within days and weeks, not months and years. There is no prospect of someone being left in perpetual limbo, as suggested by a number of noble Lords, including the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Coventry. Amendment 23 is therefore redundant. I therefore invite the noble and learned Lord, or his proxy, not to press Amendment 20.
Lord Alton of Liverpool (CB)
My Lords, can the Minister answer the question that I put to him about the disapplication of a national referral mechanism in the case of children, a point which has been raised by the Children’s Commissioner? If he does not have the answer now, can he write to me?
Lord Murray of Blidworth (Con)
Forgive me; I intended to address the noble Lord’s point in relation to that. Obviously, the provisions in Clause 4 make specific reference to the power to remove children, which is contained in Clause 3. That in itself is a safeguard to protect the welfare of children. It operates in a way that promotes the interests of children, I suggest, but I am happy to look further at that point and will take it away.
Lord Purvis of Tweed (LD)
Can I clarify the point that I was making? The Minister alluded to maybe coming back to me. He implied that the problem arose with those who claim, when arriving here under what the Government say is an illegal route, that they are victims of trafficking. The review of that happens only after a referral is made, and there cannot be a self-referral. He seemed to blame the threshold on which that assessment is made as to whether a first responder then submits that person to the NRM. That threshold is the Home Office threshold and the first responders are Home Office- licensed. Why does the Minister think that the Home Office is getting it so wrong?
Lord Murray of Blidworth (Con)
I am afraid that I disagree. The Home Office is not getting it wrong. As I already set out in my remarks, the numbers of people claiming to have been modern slaves in this scenario indicates that there is extensive abuse. I do not think that the noble Lord could say anything else, looking at the very persuasive statistics of people in detention. I simply do not agree with him on that point.
Lord Purvis of Tweed (LD)
If we have found that there is no loophole in the system, that is good—so it is just the numbers. Therefore if the number of those who are trafficked goes up, that is the problem. It is not that there is a loophole in the system meaning that a higher proportion are falsely claiming that they are being trafficked. What message does that say around the world? The UK is now blind to the individual merit of a young woman being trafficked if there are many young women being trafficked—that is when we close our doors.
Lord Murray of Blidworth (Con)
That is not the case. Much as we might wish it to be, the simple reality, I am afraid, is that our modern slavery protections are being abused. The measures in the Bill directly address that.
Lord Scriven (LD)
If they are being abused, what is the percentage success rate of people who were referred in the last two years?
Lord Murray of Blidworth (Con)
I am afraid that I do not have those statistics to hand, but I can write—
Lord Scriven (LD)
I can help the Minister. I think it is 82% and 91%, on average. The issue is therefore that, once these cases have been looked at, the Home Office is granting people asylum based on them being part of the modern slavery system.
Lord Murray of Blidworth (Con)
The noble Lord will be aware that there are two stages to the process—a reasonable grounds decision and a conclusive grounds decision—and different statistics. A light touch has hitherto been applied in relation to reasonable grounds. I will need to look into the precise statistics and revert to him on that. I am afraid I do not recognise those statistics immediately, so they will require further research.
Baroness Butler-Sloss (CB)
I cannot remember the exact numbers, but if the noble Lord looks at it the conclusive grounds is the number which matters, and that is extremely high.
Lord Scriven (LD)
When the Minister replies to me, can he ensure that a copy goes to the Library, please?
Lord Hunt of Kings Heath (Lab)
My Lords, I was going to wind up, if I may. Other noble Lords may contain their enthusiasm for dental charges, but I am keen to move on to that important issue. I will not give a long speech, although I was profoundly depressed by the Minister’s response. I will make three points.
First, the noble and learned Baroness, Lady Butler-Sloss, is right that we were so proud of the Modern Slavery Act and the credibility that it gave to our country. This Bill undermines it fatally in so many ways. Secondly, the noble Lords, Lord Purvis and Lord Scriven, are also surely right. The Minister has essentially said that there is nothing wrong with the robustness of the system. My evidence is that 90% of the competent authorities’ decisions last year were positive decisions, while 91% of conclusive grounds decisions were also positive. This is a system that the Home Office itself oversees. It seems that the cases coming before it are proven to be positive. I do not see how the Minister can possibly then say that there is evidence that the system is open to abuse. To say that it is a question of numbers wholly undermines the Home Office’s case for this.
The third point is that, in passing this Bill unamended, we are strengthening the hands of the trafficking networks. As has been pointed out a number of times, traffickers keep people under control with threats that they will not receive help if they reach out to the authorities. That is what this Bill is doing. It is saying that the UK Government will not give help to desperate people. To answer the question of the noble Lord, Lord Anderson, about our role as an advising Chamber, I know what we should do with this clause and this Bill.
I am very grateful to all noble Lords who have spoken. It has been a profoundly interesting and saddening debate, and I am sure we will come back to it on Report. Having said that, I beg leave to withdraw my amendment.
Lord Murray of Blidworth
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Murray of Blidworth at page 5, line 38.
Lord Murray of Blidworth
(c) any other application to a court or tribunal which is required by an enactment to be determined by applying the principles that would be applied by a court on an application within paragraph (a) or (b).”Member's explanatory statement
This amendment expands the definition in the Bill of “application for judicial review” to cover in particular an application to the judicial review jurisdiction of the Upper Tribunal or the Special Immigration Appeals Commission.
Lord Murray of Blidworth
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Murray of Blidworth at page 5, line 38.
Member's explanatory statement
This amendment and the amendments in the name of Lord Murray of Blidworth at page 7, line 24; page 7, line 27; page 7, line 43; page 8, line 5; and page 8, line 28 supplement references in Clause 5 to a person who is (or is not) a national of a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002 (inserted by Clause 57) with references to a person who has (or has not) obtained a passport or other document of identity in such a country.
National Health Service (Dental Charges) (Amendment) Regulations 2023
(11 months, 1 week ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord Hunt of Kings Heath
That this House regrets that the increase of 8.5 per cent to patient charges under the National Health Service (Dental Charges) (Amendment) Regulations 2023 (SI 2023/367) (1) will be a considerable burden on NHS patients, and (2) will not help to improve access for NHS patients, including children and young people.
Lord Hunt of Kings Heath (Lab)
My Lords, I know how eagerly noble Lords have anticipated our debate this evening. I should declare at the beginning my presidency of the Fluoridation Society and patronage of the National Water Fluoridation Alliance, so I can guarantee the House that I am not going to mention fluoridation again during tonight’s debate.
This is a critical time for NHS dentistry. The massive hike in charges of 8.5% in this SI seems to be a deliberate policy of discouraging patients who need care the most. Of course, it comes at a time when access to dentists has become increasingly difficult, with reports of patients resorting to DIY dentistry because they cannot get access to an NHS dentist. In August last year, the BBC reported that, based on a survey of 7,000 NHS practices, nine in 10 were not accepting new adult patients for treatment. The problem, of course, predates the pandemic, when enough dentistry was commissioned for only around half the population in England, and in many parts of the country access to NHS dental services was already very poor. It has now got worse.
Of course, the increasing cost burden on patients has been paired with a crisis of access. The General Dental Council found that the proportion of adults receiving dental care under the NHS fell from approximately half in 2013 to just over a third in 2021. The proportion of those over 15 years old receiving free NHS dental treatment fell from 31% in 2012 to 22% in 2017. According to the most recent GP Patient Survey, conducted in 2022, 12.9% of those surveyed said they had failed to get an NHS dental appointment in the last two years.
These access problems are obviously also linked to workforce challenges. In June 2022, the House of Commons Health and Social Care Committee reported that the headcount of primary care dentists in England providing NHS treatment or otherwise conducting NHS activity in 2020-21 was at its lowest level since 2013-14. The report said that although the GDC register has the largest number of dentists in its history, the number of dentists doing NHS work is decreasing. The BDA has told me that official data it secured shows that
“just 23,577 dentists performed NHS work in the 2022/23 financial year, down 695 on the previous year, and over 1,100 down on numbers pre-pandemic”,
which
“brings figures to levels not seen since 2012”.
The noble Lord referred to the NHS workforce plan in Oral Questions today. We certainly need a coherent long-term workforce plan for all dental professions, underpinned by data, starting with the regulator, the GDC, which counts dentists registered by full-time equivalent and not headcount. The basic fact is that we do not have enough dentists in this country willing to perform NHS treatments. At the moment, the shortfall can really only be met with overseas recruitment.
On that, I understand that the GDC has just announced that it is tripling the number of places on the first part of its overseas recruitment examination. However, there is no mention of part 2, which is the practical part of the process after candidates have passed part 1. Completely missing at the moment is anything being done to ease the blockages involved in getting an NHS number. Without that, newly registered dentists can work in the private sector immediately but not the NHS, making access to NHS dentistry even more problematic as private practices are more accessible to overseas recruits.
Dentistry has been subject to cuts unparalleled in the NHS. In real terms, net government spend on dentistry in England was cut by over a quarter between 2010 and 2020. The Prime Minister keeps making references to the £3 billion spent on dentistry, presumably implying that that is a growth figure. In fact, the budget was over £3 billion in 2015. In May 2022, the noble Lord, Lord Kamall, the Minister’s predecessor, told the House:
“The Government are working with NHS England and the British Dental Association to reform the current NHS dental system and to improve access for patients, tackling the challenges of the pandemic”—[Official Report, 24/5/22; col. 754.]
He also referred to an extra £50 million for additional activity and patient appointments. However, this is clearly not sufficient and a drop in the ocean. Actually, we have the remarkable situation whereby, as I understand it, we also have a likely £400 million underspend in the dental budget in the financial year just finished.
We then come to the issue of charges. In their Statement in March, the Government argued that this increase was necessary in order to continue to fund dental provision. They argued that the larger increase was necessary because dental patient charges had been frozen since December 2020. One contrasts that with the large underspending figure in the current dental budget. I simply do not see why the underspend figure could not be used to incentivise dentists to provide more NHS treatments. I understand that in the north-east there is a concept that follows the dental access centres, which we as a Government opened up and incentivised dentists to provide more NHS treatment. Some more imaginative leadership from the Government on this could use the money in a more effective way. We should not underestimate the real challenges for patients in finding access to a dentist where they are not eligible for financial support but do not have the resources to go private. For some people, this is a hugely disturbing and worrying challenge.
The BDA has said that the hike in charges
“won’t put a single penny into a struggling service”
or improve patient access to quality dental care. In essence, patients are being asked to pay more so that the Government can put less into the dental budget. We are talking about a huge differentiation between what happens in England and in the rest of the UK. A band 1 treatment, a check-up, will now cost £25.80 in England but just £14.70 in Wales. A band 3 treatment such as dentures will now cost £306.80 in England and just £203 in Wales. It is important to have some cohesion across the NHS in the United Kingdom and the differential in charges is really worrying.
The Government have described charges—no doubt the Minister will do so in his speech—as a patient’s contribution towards the cost of NHS care. However, it is clear that they are being used as a substitute for state investment, increasing as a proportion of total spend within a flat budget, thereby enabling Ministers to cut back government contributions. One wonders where this is all going to lead. Is this a signal that what the Government are doing is gradually withdrawing from any responsibility for NHS dentistry, leaving many members of the public desperately short of the ability to access a dentist?
The fact is that the UK now spends the lowest share of its health budget on dentistry of any European nation, according to OECD figures published in 2019. That is unsustainable and the dentistry service requires greater investment and leadership. I hope that this debate will provide some evidence to the Minister that the Government need to get a grip. I beg to move.
Lord Allan of Hallam (LD)
My Lords, I am very grateful to the noble Lord, Lord Hunt of Kings Heath, for giving us the opportunity to have this debate. I think he is having an even busier day than the Minister, given his contribution to the Illegal Migration Bill debate that we just had.
There are two real questions that people are asking about access to NHS dental services. The first is whether they can get an NHS dentist. That is something that we have debated in the context of other regulations along similar lines discussing the way in which the remuneration scheme works. The second question is about how much will it cost if they do get one—if they are the lucky few who can navigate through the system and find an NHS dentist, and that is what we are primarily discussing today.
It is also important to touch on dental deserts, particularly in rural and coastal areas. I hope that the Minister may also have some to say on availability. He has assured us in this House previously that the Government have ideas to try to improve the ability of NHS dentists generally, and I know he had some creative ideas about attracting dentists into under-served areas.
Having got through the barrier of finding an NHS dentist, we now need to think about the question of charges—a question that is entirely academic if you are unable to get one in the first place. The Government are proposing in these regulations an uplift—in common language, an increase, but they prefer to use “uplift”, which I think is supposed to sound a little softer— of 8.5%. I find that curious language. When I go to supermarkets they do not tell me that they are applying an uplift value to their prices; they apply an increase to their prices, but here we are told it is an uplift value.
In paragraphs 7.8 and 7.9 of the Explanatory Memorandum we get a lengthy and quite convoluted explanation of where that money goes, which makes it clear that patient charges make no direct contribution to the remuneration that the dentist receives. People out there may think that the payment they are making to the NHS goes to the dentist, but it does not. Again the Explanatory Memorandum makes it clear that there is intentionally no link between the contract price paid to the dentist and the contribution that the individual pays. Paragraph 7.8 states that the money is essential to improve access challenges, and that current and future work to improve NHS dentistry would be undermined by the risk of reduced funding if the patient charge revenue was lower. Yet, as we heard from the noble Lord, Lord Hunt, it is reported that there was a £400 million underspend in the NHS dentistry budget for last year, so I have a couple of questions for the Minister, a maths question and a logic question. The maths question is: will he confirm that £400 million is approximately five times as much as the £78 million in extra revenue that we are told that this 8.5% increase will achieve? In other words, if we were not to have the increase but were simply to roll the underspend into dentistry, we could cover five years of that additional revenue-raising from the underspend that already exists. The logic question is simply: how can we say logically in this paragraph that these charges are essential to improve NHS dentistry when we are not spending the money that is already available? Perhaps the Minister is going to make us all happy by confirming that that £400 million underspend is all going to be spent on NHS dentistry, in addition to the extra £78 million, but I suspect that is not going to be the case. Listening to the noble Lord, Lord Hunt, I wondered whether one of the solutions might be that the new charges should not be allowed to be levied unless and until all the existing budget has been spent. If there is going to be a £400 million underspend, perhaps the patient should benefit from that if the money is not going to be rolled back into NHS dentistry.
The overriding concern is one that the noble Lord, Lord Hunt, also referred to: that the long-term commitment from this Government to provide dentistry within the National Health Service just is not there. The right words are being spoken, but the actions are telling us a different story.
The Government’s own impact assessment notes, at paragraph 37, tell us:
“There remains uncertainty about whether higher patient dental charges would lead to lower levels of patient access”.
They say that, although the research is not clear,
“it is very likely that higher charges will reduce the number of patients seeking NHS dentistry services, relative to there being no patient charge uplift.”.
So, again, the Government’s own notes tell us that it is likely there will be reduced demand for NHS dentistry as a result of the charges that we are discussing today.
Paragraph 32 very tellingly talks about the relationship between NHS and private dentistry, which, of course, is an alternative in most parts of the country. It says:
“There is also a risk that increases in NHS charges could mean that the cost of NHS dental treatment becomes closer to prices of private dental care. Some patients may choose to receive private care if the cost differential is lower”.
It seems logical that, if a patient is confronted with real difficulty in getting an NHS dentist compared with getting a private dentist and if they understand that there is no real price differential, those two forces combined will act to steer people away from NHS dentistry towards private dentistry.
As I know the Minister and I have heard him speak on these issues before, I suspect he will say that this is not the Government’s intention—but we need more than words. We need evidence that we are not seeing a succession of measures leading inexorably in one direction: a direction in which dentistry ceases to be available on the NHS at a fair NHS price for people in large swathes of this country.
Baroness Merron (Lab)
My Lords, I am grateful to my noble friend Lord Hunt for tabling this regret Motion and speaking so clearly to it, describing for your Lordships’ House what this actually means for people by its effect on NHS dentistry.
I am glad to follow the noble Lord, Lord Allan, and I absolutely associate myself with his remarks about the word “uplift”. It is a very positive way of describing an increase in costs to those who need NHS dentistry. We should remind ourselves that this is why we are having this debate, not only about the costs but about the sorry reality of the state of NHS dentistry at present—and bearing in mind that all this takes place in the context of a cost of living crisis.
It is incumbent on us this evening to remind ourselves that poor oral health—which is where we end up when people do not look after their teeth because they cannot afford and/or cannot access NHS dentistry—does not just affect the teeth. It impacts on our general health and well-being; it affects what we can eat, how we communicate, and how and whether we can work, study and socialise with ease, and it affects our self-confidence. Yet it is right to say that tooth decay is largely preventable.
There is also a significant public health problem linked with considerable regional variation and inequality. A three year-old living in Yorkshire and the Humber is more than twice as likely to have dental decay as a three year-old who lives in the east of England; and one in three five year-olds in the north-west has experience of dental decay, compared to nearly one in five in the south-east of England. It would be helpful if the Minister could tell us: what is the Government’s aspiration in respect of NHS dentistry? That aspiration and the practical means to achieve it seem to have got rather lost on the way.
As we heard from my noble friend Lord Hunt, the last 13 years have seen dentists quitting in very considerable numbers. In 2021 alone, 2,000 quit the NHS, which represents almost 10% of all dentists employed in England. An estimated 4 million people cannot access NHS care, with some parts of the country now described as dental deserts, where remaining NHS dentists are not taking on new patients.
To secure a future, we need staff, which I will refer to later, and the equipment, technology and access to ensure that patients get the treatment they need. This raises a number of wider questions. We are spending less on dentistry per head of the population in the areas with the highest levels of deprivation. Statistics from the British Dental Association suggest, for example, that 1 million new or expectant mothers have lost access to dental care since the start of the pandemic. Could the Minister say what the Government are doing to prevent those on low incomes or in more vulnerable groups being disproportionately impacted?
Tooth extraction in hospital due to tooth decay remains the most common reason for hospital admissions in the six to 10 year-old age group, with an estimated cost of hospital admissions for children aged between nought and 19 for this intervention being some £33 million per year. What steps are being taken on early preventive action to reduce what has become a shameful situation?
We know that 91% of dental practices are not able to accept new adult patients in England and 80% are not able to accept new child patients. Millions are having to face the unpalatable options of waiting for months in agony, resorting to their own DIY dentistry, or stumping up for private dental fees they simply cannot afford. My question to the Minister is not just about what the Government are doing to tackle this crisis, but how did they allow it to get to this situation? From inadequate support for the prevention of oral ill health in childhood to dental deserts, net government spend on general dental practices in England has been cut by over one-third over the past decade. Again, perhaps the Minister could explain how the situation has been allowed to deteriorate to this extent.
We know that not enough is being done to recruit and retain dentists and dental care professionals. A recent British Dental Association member survey showed that more than nine in 10 owners of dental practices with a high NHS commitment found it difficult to recruit a dentist, with 43% of vacancies unfilled for more than six months.
On the workforce, there is a point I want to underline following the points raised by my noble friend Lord Hunt. In June last year the House of Commons Health and Social Care Committee reported the findings of its inquiry into the health and social care workforce. It found that the headcount—to underline this—of primary care dentists in England providing NHS treatment or otherwise conducting NHS activity in 2020-21 was at its lowest level since 2013-14. While the register has the highest number of dentists, the number doing NHS work is decreasing. In 2021 alone there was a decrease of 951 dentists with NHS activity in England. That is the near equivalent of the whole intake target of dental students for the whole year. Perhaps the Minister could explain how this all stacks up.
On the matter of substance—we have heard much about this from the noble Lord, Lord Allan, as well as my noble friend Lord Hunt—at almost 500 practices across England the British Dental Association tells us that the amount paid by NHS patients was greater than the amount paid to that practice to provide NHS services. The analysis suggests that patients at those surgeries were topping up government funding by an estimated £2 million last year. It would be helpful to hear from the Minister how and in what way this makes sense.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
My Lords, I am pleased to respond to this debate on these regulations and to address the concerns about their impact on patients and access to dental treatment. I thank the noble Lord, Lord Hunt of Kings Heath, for securing this debate on this important matter, and I thank noble Lords on all sides of the House for their contributions to the constructive debate.
Dentistry is an important part of the NHS and we acknowledge the gravity of the challenges that some people have faced in accessing these services—and the real impact on the health service and A&E, and on young children, that the noble Baroness, Lady Merron, mentioned. So, to answer clearly the point of the noble Lord, Lord Hunt, about this not being about decreasing access, I say that access challenges are at the top of our minds. Hopefully, this speech will show that we have an aspiration to increase access to dentistry, as the noble Baroness, Lady Merron, said.
In July 2022, we announced a package of dental system improvements, having fully engaged, via the NHS, with the dental profession and patient representatives. These initial changes were aimed at improving information for patients, improving incentives in the contract to deliver more complex care and enabling the NHS to better work with the sector to ensure that dental care is delivered.
Most importantly of all, I will address the underspend head on. I appreciate the noble Lord’s maths, but I will be absolutely clear that we do not want the underspend; it is caused by dental surgeries that are not delivering on their contract. In many cases, they declare a number of UDAs to underpin their business and then try to sell in the private sector, ending up with an underdelivery at the end of the year. The changes that we introduced on 18 May were all about being able to adjust those contracts so that, where dentists underperform, we can remove those UDAs from them and redistribute them to those who are performing. So, effectively, I can say categorically that we are not trying to bank that £400 million—which is not the final number, I should say—or to bank an underspend; rather, we are trying to find ways to prevent that happening, because we absolutely accept that we want access to increase in all of this.
The dental patient price increase—I will not say “charges uplift”—is very much about generating money which will be used around the system. This is not a case of saying, “Oh, we’re going to try to bank the underspend and generate some more for us”; this is about trying to get to where people can afford to pay. Let us remember that 50% of people, including those in the most need, receive their dentistry completely free, so this is for the 50% or so of people who are in a position to afford it. Of course, since dental charges were last increased, we have had an increase in inflation of 17.9%, so what we are doing here is increasing those prices by only half that amount. This is about making sure that the money is there to fund an expansion of dentistry.
We consider that the 8.5% is a proportionate increase; it is about £2 on the cost of an NHS check-up. I reiterate that it is being paid only by those people who are in the best position to be able to afford it; we are making sure that those who cannot afford it continue to receive it free at the point of care. We know how important it is to provide the courses of treatment. We provided 8 million courses, 5.6 million of which were to children. The noble Lord, Lord Hunt, will be pleased to know that 54% of those are for fluoride treatments. We understand that it is vital that we provide those preventive measures to children.
To answer the noble Lord, Lord Allan, we know that we need to go further; the creative thinking has continued, and there will be further, wider-reaching changes to improve access to NHS dental care that we hope to announce shortly. I can say, hand on heart, that we are actively looking at ways to fund these increases. This is not about trying to bank underspend; this is about trying to make sure that those underspends are delivered. If those we are contracted with are not delivering it, we will find others who will do it. That is also where some of the creative ideas will come in.
Lord Allan of Hallam (LD)
I am curious about the point the Minister made about the underspend resulting, in a sense, from accounting practices—or, as I understood it, that people are seeking additional contracted amounts to boost the financial health of their dental practices. It is first time I have heard that. I wonder whether he thinks that that is a temporary phenomenon that will somehow come out of the system, or whether it is something that is inherent in the way the system has been established so that private dentists are contracting for blocks of NHS work.
Lord Markham (Con)
I will try to unpack that point a bit more. A dentist can say, “Okay, I can provide so many UDAs over the course of the year”, and they will be contracted to do that. But there is then the situation whereby some of them—I am not saying all of them—having that banked in and knowing that they have the money to afford it, might go out to try to sell private healthcare, underpinned by that money. At the end of the year, if they have not delivered all the UDAs, then, in effect, the only reason that they have not delivered it is because they substituted that for private care work, resulting in that underspend, which we do not want.
That is what the changes we talked about in May were about: removing the UDAs from those persistent underdeliverers, for want of a better word, and having the capacity to give them to those who are persistent deliverers, so that we can increase their amounts by 110%. This is very much about taking away from those who are not delivering and giving to those who can, and also having money in the bank for some of the more creative ideas that Minister O’Brien is very focused on, and that we look forward to delivering. I can say, hand on heart, that is not about banking underspend; this is about making sure that we can redistribute it. These price increases—which, again, are half the rate of inflation—are for funding a dentistry plan through which we want to improve access; that is fundamental to all of this.
I hope that noble Lords understand a bit more where we are coming from and understand that it is an 8.5% increase versus 17% inflation. We are looking to recycle that increase and put it into more access for those who are not receiving it at the moment. I hope that noble Lords will see this in a better light and that it is all about increasing access.
In conclusion, as the noble Lord, Lord Hunt, mentions, it is important that patients can access NHS dental care and that it is affordable. No price increase is easy but we hope it is seen that this is a proportionate increase at less than half the rate of inflation and only for those 50% of people who are in a better position to pay. Most of all, this is part of a package of measures, of which more will be announced shortly, about expanding access to NHS dentistry—because I completely agree with the noble Baroness, Lady Merron, that it is vital to the health of our children, particularly, but to all the people in England.
Lord Hunt of Kings Heath (Lab)
My Lords, I am very grateful to the Minister and for him attempting to explain the mystery of the dental contract, which has defeated many Ministers over many years. Explaining it in the way he did lends support to those who think we need a fundamental rethink about the way we remunerate dentists. I took part in some of the discussions with the profession which led up to the last contract and before that there was the contract in the 1990s. Essentially, it seems to me, each time there is a revenue envelope agreed with the Treasury on how much can be afforded for a new contract. The profession will always exceed performance in general because it is always based on a payment for a procedure, although efforts have been made to bring in incentives to treat the oral health of a person as a whole, more like the way in which GPs are remunerated. But at the end of the day, we still await a change in contractual arrangements which will provide the right incentives.
I am grateful to my noble friend for her support. She is right to say that at the heart of this is needing to know the Government’s aspiration for NHS dentistry. The Minister said that dentistry is an important part of the NHS, that he recognises the access challenges faced by the public and that we can await further announcements. I welcome that and hope that we can reset NHS dentistry on a much more positive route for the future.
In relation to charges, the contrast between the difficulty so many patients are having in getting access on the one hand and the 8.5% increase on the other is very difficult to understand and to support. Many of the people who rely on the NHS but do not get benefit support from the state are really caught by high inflation in general and dentistry charges is one more burden they have to face. That ultimately is what makes the proposal before us really rather worrying.
I hope this is an opportunity to reset our whole concept of NHS dentistry. I am very grateful to noble Lords who have supported the debate tonight and beg leave to withdraw my Motion.
Illegal Migration Bill
Monday 5th June 2023
(11 months, 1 week ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-III Third marshalled list for Committee - (5 Jun 2023)
Baroness Hamwee
Member's explanatory statement
This amendment removes a subjective power of the Secretary of State to determine that there are “exceptional circumstances” to prevent a removal.
Baroness Hamwee (LD)
My Lords, I also have various other amendments in this group. I feel I should speak very slowly in the hope that those who have the other amendments in this group arrive in time to introduce them.
Amendment 30 relates to Clause 5, which is one of the removal provisions. A number of noble and learned Lords, all learned in the sense that one generally understands it—I can see one of them in her place—have put a good deal of work into the other amendments in this group. I do not want to pre-empt what they and my noble friend Lord Paddick will say, so I will leave that support unspoken.
Clause 5(4)(b) places the Secretary of State above the law and above the courts, because the first hurdle to making a protection or a human rights claim is that
“the Secretary of State considers there are exceptional circumstances”
preventing removal to a particular country. This amendment is intended to probe what is meant by “exceptional circumstances”. I hope the Minister can expand on this. We have examples in subsection (5) which are about particular countries and not individuals. I suspect that they may include situations which are the subject of many other amendments in this group, and if so we should spell that out and not make it a matter of discretion. I am questioning the Secretary of State’s discretion, as I understand it—reasoned discretion, one hopes—or consideration that there are exceptional circumstances which prevent removal to a particular country.
It was only when I was preparing for today that I paused on the word “prevent”. Does it really mean preventing removal, which to my mind conjures up pictures of protestors preventing take-off of a plane carrying a particular individual? Or does it mean that removal is inappropriate or risky because of the reception—in the broadest sense—at the other end; or that there are circumstances which mean that removal would be unsafe? If it is about treatment at the other end, I am not sure that “prevent” is the right term.
I very much support the amendments—which we will hear about in a moment— extending the list of countries and parts of countries which are dangerous to return people to.
My amendments are directed at, and opposing, the notion that an individual can be safe in a part of a country if he is not safe in another part of the same country. Not every country is in a tidy unity, but where there are laws, they tend to apply overall. Where there are prejudices in a country, those who may be a threat to an individual will be free to travel between different parts of the country. Those are Amendments 52A to 52D, Amendment 52G and Amendment 53A.
Amendments 52B and 52D challenge the proposition in Clause 6(1) of removal if “in general” there is no serious risk of persecution or that removal will not “in general” contravene obligations under the human rights convention. What is meant by “in general”? I do not understand the term in this context. It is not fair to call it a lazy term, because I appreciate the vast amount of work that goes into drafting any Bill—however much one dislikes it—but it is not a very imaginative way to describe a situation. If you cannot give an example, you should not be trying to use generalised terminology. This seems to be another demonstration of the Government clutching at anything they can to deny obligations to asylum seekers. I beg to move Amendment 30.
Lord Carlile of Berriew (CB)
My Lords, I apologise for my slightly late arrival in the first minute of this debate. I rise because I am the signatory of a number of amendments tabled by my noble and learned friend Lord Etherton, and because I have some amendments in my own name: Amendments 33A, 34 and 35.
The aim of all these amendments is to ensure that something happens which I feel should not cause any differences with the Government. I think it may be a matter of interpretation or a matter of adding a few words to the Bill. Principally, it relates to the treatment in third countries of people who fall within the LGBTQ group. Section 80B of the Nationality, Immigration and Asylum Act 2002 provides that a state is a safe third state in relation to a claimant if
“the claimant’s life and liberty are not threatened in that State by reason of their race, religion, nationality, membership of a particular social group or political opinion”.
I focus on the words
“member of a particular social group”.
I am sure the noble and learned Lord, Lord Bellamy, will acknowledge that the definition of a “particular social group” has been to the courts. Indeed, government guidance has been issued which accepts that being a member of the LGBTQ+ community, subject to the facts being established—obviously, there is a consideration of the facts in every case—entitles that person to protection from Section 80B, as I quoted. The purpose of these amendments, therefore, is to ensure that people who are seeking asylum because they are a member of that social group—or another definable social group—do not lose the full protection of the law by reason of the content of Schedule 1 to this Bill, and the provisions of Clause 5 in particular.
Lord Alton of Liverpool (CB)
My Lords, I rise mainly to introduce Amendment 52F, in my name, but before doing that I would like to endorse everything that my noble friend Lord Carlile has just said. We should recognise that there are countries that people should not be sent to, where convention rights would not then apply to the subsequent refoulement. I also agree with the opening remarks made by the noble Baroness, Lady Hamwee, in moving her amendment. Again, I endorse those and associate myself with those remarks.
The noble Baroness, Lady Hamwee, was one of those who attended a meeting that I organised here before Second Reading of the Bill, which the Salvation Army and a number of other stakeholders attended; the noble Lord, Lord Coaker, was also present. The point about the Salvation Army is particularly relevant because, of course, it is one of the stakeholders that works for the Home Office in dealing with many of the people whom we are discussing in the context of this Bill. Arising out of that discussion, I thought it would be good to table amendments along these lines. In fact, there are others elsewhere in group 19 and I will come back to that in a moment.
In this group—group 4—Amendment 52F would ensure that there is consultation with relevant stakeholders in the country to ensure compliance with international obligations and that detailed assessments are made in respect of protection and support. I remain concerned that the Bill denies access to protections, safety and support for those seeking refuge and victims of modern slavery. I touched on that in previous groups that we debated earlier this afternoon.
In doing so, far from breaking the business model of people smuggling—as the Government repeatedly state—and deterring illegal entry into the UK, I think the Bill merely enhances the ability of people smugglers and people traffickers to operate with impunity. Currently, there has been very little assessment of the implications of the Bill for those seeking refuge and victims of modern slavery, including compliance with international legal instruments, as well as the financial implications if implemented and the effect on the wider modern slavery strategy.
I know the House is waiting with anticipation for the findings of the Joint Committee on Human Rights, which will meet again tomorrow to, I hope, come to a final conclusion about the report it has had to rush—pell-mell, one might say—because of the pace at which the Bill has been taken through both Houses of Parliament. Nevertheless, that report—I hope it will be unanimous but, if not, it will be a majority report—will be available to your Lordships for further consideration in Committee and on Report.
The Bill could have devastating effects on the rights of survivors of modern slavery. Furthermore, it is clear that my concern is shared right across party divides. We have seen that in the context of the debates in another place and the speeches made by people such as Sir Iain Duncan Smith and Theresa May that have been quoted in our earlier debates, but also from the survivors of modern slavery themselves. Indeed, the Joint Committee on Human Rights has had evidence from people who have been victims. I personally found it very moving to hear some of their own accounts. We have also heard from former law enforcement officials, lawyers and people who have dealt with these issues over very many years.
Rather than repeating what has already been said, I will speak specifically to Amendment 52F, which would ensure that there is consultation with relevant stakeholders in the country to ensure compliance with our international obligations and that detailed assessments are made in respect of protection and support. As I have said, the amendment sits alongside Amendments 85C and 92B, which are also tabled in my name but do not come until much later, in group 19. They would put on the face of the Bill an obligation for the Government to carry out due diligence to ensure the safety of those who are removed from the UK to other territories and countries. Indeed, we will come on to that question in a later group of amendments.
These amendments have been drafted with survivors of modern slavery and human trafficking in mind, as they too will be subject to removal from the UK if they have been deemed to enter the country irregularly. We know from experience the time it can take for a survivor to feel safe and begin their journey of recovery. We all know how heightened vulnerabilities need to be protected against trauma and the kinds of experiences people have had to endure, which have been referred to in some of our earlier debates. I cited one example earlier, reported to me by the Children’s Commissioner—I am still shocked by the story of a young boy from Iran who watched his parents being executed. It took him a year to get to the safety of this country, and the idea that he could be returned to who knows where, who knows when, is unconscionable as far as I and probably most Members of the Committee are concerned. That is why we have to think very carefully about the protections we place in the legislation. We also know that removal of survivors to another country against their will—or the fear that they might be repatriated—can exacerbate their vulnerabilities, delay or prevent that recovery process and unfortunately lead to the individual being re-exploited or re-trafficked, doing nothing to break the wicked cycle of exploitation.
If the Government insist on pushing forward with these plans of removing trafficking and modern slavery survivors from the UK, they must do so with the utmost diligence and transparency. That is why Amendment 52F would require the Government to undertake comprehensive assessments, including detailed consultation with relevant safeguarding and support organisations in the country or territory to which the survivor may be removed. It would also require the Government to assess the human rights situation of the relevant country, the protection and support available to potential and identified victims, the risks of further harm by exploitation and trafficking, and the risk of direct and indirect refoulement in that country.
The amendment would also require the Government to confirm whether the duty in Clause 2 and the powers in Clause 3 would not contravene both national and international legal instruments, including but not limited to: the Equality Act, the European convention against trafficking—which I referred to in an earlier group of amendments—the refugee convention, and the UN Convention on the Rights of the Child, which we discussed at length in an earlier group.
Many of us in this House and in the other place will continue to work to ensure and enshrine the rights of survivors of modern slavery. Amendment 52F, alongside Amendments 85C and 92B when we get to them, are there to ensure some level of transparency and due diligence, which have so far been lacking within this process. The removal of survivors from protection in this country risks fuelling the cycle of exploitation that consumes lives and spits out profits for ruthless criminals. For this reason these amendments have been tabled, to ensure that the bare minimum is done to ensure the safety of those who are at risk of further harm of traffickers.
In summary, I will make four points. First, the amendment is primarily about ensuring that if there is intention to remove people to specific countries, there is a detailed understanding of both the risks and legislation, policy and practical resources in-country to meet the needs of those seeking refuge and victims of modern slavery.
Secondly, the amendment would require an assessment of the levels of protection and support, including risks of trafficking and retrafficking and wider direct and indirect non-refoulement.
Thirdly, detailed consultation with national and international stakeholders will mean greater transparency for the implementation of this legislation and make sure that it is put into place with appropriate structures around due diligence and accountability given the significant implications for those seeking refuge and victims of modern slavery.
Lastly, it would necessitate the Government making clear how the duty in Clause 2 and the powers in Clause 3 do not contravene national or international legal instruments in the implementation of the Bill should it become law, which includes those various international conventions which I referred to earlier. The failure to be able to declare the compatibility of the Bill with the European Convention on Human Rights speaks to the remarks made earlier on today by my noble friend Lord Hannay about the reputational loss there will be to this country if we are seen to be derelict in our upholding of conventions and treaties which have served us so well in the past.
Lord Cashman (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Alton, and I agree with every single word he said in respect of protections and securities for the most vulnerable.
I have added my name to the amendments in the names of the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and the noble Baroness, Lady Bennett. I will not repeat the excellent intervention by the noble Lord, Lord Carlile, but I refer the Committee to the contribution by the Minister—the noble Lord, Lord Murray—on day one of Committee, when he categorically rejected my explicit reference to LGBTQ as a protection because he said, quite rightly, that it is covered within the definition of a social group. Therefore I am sure—or rather I hope—that the Government will have absolutely no problem with our intention within the amendments, removing countries or adding corrections for definitions.
I want to look in particular at Amendment 50 in relation to Rwanda. We do not believe it is appropriate to include Rwanda when there are legal proceedings currently in the Court of Appeal as to the legality of the removal arrangements, otherwise the Government may contend that, whatever the courts in the UK or the European Court of Human Rights may say, Parliament has by this Act approved the removal arrangements in respect of Rwanda, and that trumps any court decision under our constitution.
I also want to refer to Amendment 43A in relation to Hungary and Amendment 49A in relation to Poland—both members of the European Union, as your Lordships know. We believe it is not appropriate to include these countries, because both Hungary and Poland are subject to proceedings under Article 7 of the Treaty on European Union. Such proceedings apply where the appropriate majority of the European Parliament or the Commission and the council
“may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2”
of the Treaty on European Union, which provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. I do not have to remind your Lordships that there are, and have been for many years, deep concerns within both Hungary and Poland about the discrimination faced by LGBTQ people and the ongoing threats to their safety.
Baroness Chakrabarti (Lab)
My Lords, I rise in support of Amendment 53 tabled by the noble and learned Lord, Lord Etherton, and moved by the noble Lord, Lord Carlile of Berriew, also signed by the noble Lord, Lord Anderson of Ipswich. While I support everything said so far, I wish to draw the Committee’s attention to this amendment in particular and its constitutional importance, given the constitutional conceit of this whole Bill.
If I have said it before, I hope the Committee will forgive me: the conceit of this Bill is for the Secretary of State, via primary legislation, to tie her own hands and give herself a duty to do something that we believe to be unlawful. The reason for tying her own hands is to avoid the interference of the courts. That is, in essence, the conceit at the heart of the Bill. It goes a little further. The Home Secretary is tying her hands with a duty to remove people to a list of countries, but it is a list that she may add to. Now we are very permissive and the hands have become untied in a fairly fluid way when it comes to adding further countries to this list of supposedly safe countries in Schedule 1.
The contents of Schedule 1 therefore become quite important, hence the various submissions that are being made and the various amendments that are being tabled in Committee about this country or that country, not just as they are at this moment but, in a very difficult world in flux, regarding what may or may not happen in them in the future. The present Home Secretary, and Home Secretaries of whatever stripe of Government in the future, will have this duty to remove people to countries on a list which they may add to by secondary legislation. Therefore, the factors that they must consider as Home Secretary when adding to that list are incredibly important. I hope that the Committee agrees.
The factors for deciding whether a country is safe to add to the list are in Clause 6, particularly Clause 6(4), for those who can still pick up a Bill at this time of night:
“In deciding whether the statements in subsection (1)(a) and (b) are true … the Secretary of State … must have regard to all the circumstances of the country”.
Well, of course. That is a bit of a non-protection, because we would hope so, would we not? Secondly, the Secretary of State
“must have regard to information from any appropriate source (including member States and international organisations)”.
With respect, that is not enough. Therefore, it is worth being explicit about what has been done in Amendment 53, tabled by the noble learned Lord, Lord Etherton, and supported ably by the noble Lord, Lord Carlile of Berriew, which I support. They have beefed up that second limb, so that it is not just having regard to appropriate information. What does “appropriate information” mean—appropriate information as determined by the Secretary of State in this beautifully circular process? Instead, the Secretary of State must
“apply relevant decisions of courts and tribunals operating in the United Kingdom”.
There is a radical suggestion. The Secretary of State must have regard for the law and apply the law of the United Kingdom—the case law of our courts in this country—about the safety or otherwise of these countries that might otherwise be added to the list of the countries to which the Secretary of State will have a duty to remove people.
I almost choke on my words that this has to be put in law, but we are in a place of such disregard for our domestic courts. Therefore, the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Carlile of Berriew, were quite right to insist at the very least that this should be clear in the legislation before a future Secretary of State can add further to this schedule of countries to which people must be removed by current and future Secretaries of State.
Perhaps more controversially—not for the Minister currently sitting opposite but to others, although I hope not—in addition to applying the law of this United Kingdom, as has become our custom as good members of the Council of Europe and under the Human Rights Act, the Secretary of State, before adding countries to this list, must
“have regard to decisions of the European Court of Human Rights”,
so please do not add further countries to this duty to remove unless you have applied the law of this land and had regard to the European Court of Human Rights. The Minister is a distinguished former judge. He is unique in this Committee and on the Benches opposite as an international lawyer, as opposed to being just any old lawyer, like me. Like the noble Lord, Lord Carlile of Berriew, I hope that he will see the good sense in the amendment tabled by the noble and learned Lord, Lord Etherton.
Lord Scriven (LD)
My Lords, I was not going to intervene in this particular group of amendments but, seeing that the two Front Benchers have agreed we are going to stay until 10.40 pm, and as I believe we should not be rushing through groups, I will add my bit to scrutinising the Government’s thinking on these particular amendments.
I have done a lot of work with groups in the UK who work with individuals who have sought asylum because of their sexuality, sexual orientation or gender identity. It is not a straightforward assumption that people come here and the first thing they do is claim asylum on the basis of their sexuality or gender identity. They have lived in countries where to trust the authorities with personal information about your sexual orientation or gender identity would mean either jail, persecution, discrimination or in some cases death.
So when a lot of people come here who are claiming asylum or wish to claim asylum on the basis of their sexual orientation or gender identity, they tend not to tell the authorities to start with. They tend to keep it private and very much to themselves. It is through a process of working with a number of non-government organisations and gaining trust during the interview process for asylum that, maybe on the fourth, fifth or sixth intervention with an official in the UK, they may start to open up. That is when many individuals who are claiming asylum as part of the LGBTQ+ community start to open up. They are secretive and they do not trust authority to start with.
This Bill gives them absolutely no way to explain why they are claiming asylum before the Government, under this Bill, make a decision that they could go to a country where they are in as much or more danger as in the country they have just come from in terms of their sexual orientation or gender identity. I am not clear how the Government come to the view that certain people, particularly gay males, transgender people, or people who are struggling with gender identity issues, are going to be able to go to a country of safe haven under the provisions of this Bill. If somebody is fleeing a country because of their sexual orientation or gender identity, they will maybe go to Gambia or Ghana or Jamaica. One only has to look at the Government’s own website to see travel advice that makes it very clear that these are not countries that you as an LGBT person should go to and be open, even if you are a tourist. The words that come out are “conservative” and “reserved”: “attacks” occasionally appear. So I just wonder how the Government have come up with this schedule, particularly with the process that a lot of individuals go through in terms of claiming asylum for sexual orientation or gender identity, knowing that it tends not to be something that is divulged instantly on the first interview, and then saying that people can go to countries, as I have suggested, and be safe. How would they know they are not sending somebody to a country where they are not safe?
I will move on slightly, because I was quite intrigued by the Government’s website on travel advice. With quite a lot of these countries, the Government’s own advice is that some of them are quite violent, with “express kidnappings” referred to in certain countries. If noble Lords do not know what an express kidnappings is, because I did not, it is literally that somebody will come, be able to determine that you are not from that country, assume that you are a foreign national, kidnap you instantly off the street, and then determine who your relatives are and where you have come from, and use you as a potential source of income, including potentially injuring you and in some cases killing you. On the Government’s website, with some of the countries on this Schedule 1, express kidnappings are there.
The Lord Bishop of Durham
I apologise that I was unable to be present on day one of Committee and I arrived today rather later than I had planned, so was unable to speak earlier. However, I am grateful to my noble friend the right reverend Prelate the Bishop of Coventry for so doing.
In regard to this group, it is particularly Amendments 52A onwards for which I should like to express my support, although I fully support all that has been said around the individual countries and the issue around LGBTQ+ rights. However, there is real concern around naming a part of a country or territory as safe when much of the country might not be. So I fully support Amendment 52A on that basis.
In addition, I support Amendments 52E, 52F and 53, which are not just thinking about the situation in current countries but are looking to the future and how decisions are made in the longer term. It will be vital that we take seriously examining the situations in specific countries as and when they arise. We recognise that countries change and might become safe when they are currently unsafe. Equally, countries that are currently deemed safe may become unsafe. We need this kind of provision and I suggest that on Report we come back with a combination that pulls together all the safeties from those amendments.
Lord Purvis of Tweed (LD)
I wish to ask a question of the Minister in regard to Amendment 43, spoken to by the noble Lord, Lord Carlile, regarding Ghana. It relates to the points made my noble friend Lord Scriven.
The Home Office currently proposes that we move away from looking at countries on a case-by-case basis to determine which are safe. However, under the current Immigration Rules, the Government use the country policy and information note as the basis that officers will be able to use when they are considering a case.
The country policy and information note on Ghana regarding sexual orientation, gender, identity and expression, published in May 2022, states that of course each case will be considered on its own merits. That is obvious because that is what we are moving to. However, paragraph 2.4.13 states:
“In general, L, G and B persons are likely to be subject to treatment from the state that by its nature and frequency amounts to persecution”.
So, the Minister’s department for Ghana is saying that the state persecutes L, G and B people in general terms—but for men it is a safe country. So someone fleeing Uganda because of persecution because of their sexual orientation and arriving by an illegal route can now be deported to Ghana, where that very same person is now going to be vulnerable to, as the Government say, treatment from the state that by its nature and frequency amounts to persecution. I just want to ask the Minister why.
Lord Paddick (LD)
My Lords, we support all the amendments in this group, including the probing amendments tabled by my noble friend Lady Hamwee. It is quite clear from all sides of the Committee that just listing countries as being safe is not sufficient. The Government have already acknowledged that some countries are not safe to remove women to, for example. Therefore the principle is established that a country may be considered sort of generally safe, but not safe for particular individuals, whether because of their gender or sexual diversity. The noble Lord, Lord Carlile of Berriew, introduced amendments aimed at that. The amendment in the name of the noble Lord, Lord Alton, would ensure that victims of trafficking and modern slavery are not removed to a country where they would not be safe. As both my noble friends said, when you contrast the list of countries in Schedule 1 with the Government’s advice to travellers, for example, there is clear inconsistency between the two, or at least a case for the Government to answer in terms of using the countries in Schedule 1 as a blanket list rather than looking into the specific problems or dangers faced by people who belong to different social groups.
The other concern I have is, if people who arrive by means of what the Home Office calls irregular routes are not to have their asylum claims considered at all, how will the Government know whether the individual concerned is, for example, gay or a lesbian and therefore will be put in danger if they are removed to a country that clearly persecutes people from those groups? If there is going to be no consideration of the merits of an individual’s claim, how can the Government be certain that the person is going to be safe if they are removed to one of these countries?
Lord Coaker (Lab)
My Lords, this is another important group of amendments and we support all of them. I remind noble Lords of the importance of this. Since the Bill assumes that everybody arriving irregularly will be detained and automatically removed, where they are going to be removed to becomes important to us all, and for us to have some consideration about the criteria which the Government will use is of particular importance. Can the Minister confirm that deterrence does not trump human rights with respect to removals? That was the implication of what his noble friend Lord Murray said earlier—that deterrence is everything and something that has to be achieved irrespective of any other consequence.
Since the Government always say that they are on the side of the British people, let me be controversial for a moment. With regard to the issues that we have been discussing in this group of amendments, I do not believe that the British people believe that deterrence should trump human rights. Let us make this real. I have looked at this, as other Members have done, in relation to various LGBTQ rights in countries that the Government say will be safe to send failed asylum seekers to through the Bill. Let us take the case of Nigeria; as my noble friend Lord Cashman has said, you can be flogged for being gay there. In Malawi, it is up to 14 years’ imprisonment with or without corporal punishment. In Liberia, it is a maximum of three years in prison.
Can the Minister tell us, on behalf of His Majesty’s Government, whether a failed asylum seeker who is gay would be removed to those countries? In the end, that goes to the essence of what we are talking about. I want to know, and the British public and this Chamber want to know: will such an individual—or anyone in circumstances detailed in the helpful amendments tabled by the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, my noble friend Lord Cashman and the noble Baroness, Lady Bennett—be deported, or not? I do not think they should be deported in those circumstances. I do not see how those countries can be included in Schedule 1; I do not understand that at all. I do not believe that the Minister would want anyone —a female asylum seeker, for example, who has failed according to the terms of the Bill—to be returned to a country where they would be persecuted. Would such a country be included in Schedule 1? Rather than these general terms, let us see the specifics of what would happen.
Some noble Lords who have been Members of the other place will know that people will often say in general terms, “It’s an outrage”, or that “It’s about time those people were sent back” or “dealt with”. Then, the individual case—the individual family, the individual asylum seeker, the individual gay person—comes up and that very same community launches a campaign to stop them being deported. You can see it happening up and down the country because people are genuinely decent. When the human consequences of a piece of legislation are made clear, that general enthusiasm and support dissipates because they understand its consequences.
When the Minister answers the various questions of noble Lords, I want him to answer the specifics about an individual gay person who has failed as an asylum seeker under the terms of the Bill. Will they be returned to the sorts of countries and the sorts of persecution that other noble Lords and I have outlined?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I am extremely grateful to all noble Lords who have put forward amendments in this group and contributed to this debate. The Government completely understand the sincerity and thought that has gone into these amendments and we are grateful for those observations but, for the reasons that I hope I will be able to explain, the Government do not feel that we should accept the amendments.
Lord Purvis of Tweed (LD)
I wish to probe a little more what the Minister said. I understand his points about certain parts of countries. As I understand it, the Government accept that, in certain parts of countries, the risk to the individual will be such that that person should not be returned or sent to them if they are part of what could otherwise be a safe country. What is our Government’s mechanism to secure a guarantee from that country’s Government that that person would not then be sent to that region?
Lord Bellamy (Con)
I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned. I agree that that may not be enough, and the situation may well be such that it is not appropriate to designate a part of the country. All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it. It would still be open to an individual, in a suspensive claim, to say, “I’m still at risk because I might be transferred to the part of the country where it would be too dangerous for me to be sent”. That would be part of the analysis that the tribunal seized of the case would have to make.
Lord Scriven (LD)
I appreciate that the Minister said that, therefore, a negotiation may have to be done on not sending someone to part of a country. How would the British Government and the Home Office then monitor that to ensure that the host country kept to the agreement and that people were not moved to the part of the country that was deemed unsafe?
Lord Bellamy (Con)
The Government would have to monitor it as best one could, and, if it turns out that an arrangement is not satisfactory, it probably may not be a good idea to designate that part of the country as safe in the first place. All I am saying is let us not deprive ourselves of the opportunity to have this flexibility. We can work it out as we go forward.
What I should come to now are Amendments 35, 36, 41 to 52 and 54 in the name of the noble and learned Lord, Lord Etherton, so ably developed by the noble Lord, Lord Carlile, and spoken to by others. In essence, they seek to amend either Clause 5 or the references to various countries listed in the schedule on the basis that certain individuals would have a well-founded fear of persecution and that we should therefore now declare in statute which these countries are and on what basis people should not be sent back to them. In general terms, the Government’s view is that it is not desirable to enshrine in statute descriptions of which countries are safe or not, or of particular groups of individuals or those with protected characteristics. The route—
Lord Bellamy (Con)
I will finish my train of thought and then give way. The noble Lord, Lord Coaker, rightly asked about the route for the protection of the individual. If there is a removal notice to a country in question, and if they have a well-founded fear of persecution and would be at real risk of serious and irreversible harm if removed to that country, they have a right to make a suspensive claim—a claim of suspensive harm—and that claim is then appealed to the Upper Tribunal. That is their individual protection in which their individual circumstances are closely considered, including in a judicial process. That is the essential protection.
I also clarify that, if you read the Bill with care, you will see that people cannot be sent back to a country unless we are satisfied that the country is prepared to accept them. In practical terms, that will include Rwanda at the moment and other countries in the future, with which we might be able to form immigration partnerships. However, that is a precondition that does not necessarily apply to many of the countries listed in the schedule.
Lord Scriven (LD)
First, following on from what the Minister said at the beginning of the answer he has just given, when he said that the Government do not feel that it is appropriate to list characteristics of individuals in the Bill, I ask him: why in Schedule 1 are there, on eight occasions, a description of an individual in the list of countries for men only? They are deemed not safe for women; therefore, the Government have described certain groups of individuals by a characteristic.
Secondly, and very importantly, the point I raised—which the Minister may be coming to, based on his last answer—was that most people who claim asylum on LGBT, sexual orientation or gender identity grounds tend not to start with that. Therefore, it would be completely missed if there were not people supporting them to be able to go through a normal process. In some cases, it takes five or six attempts before that person will claim asylum on their own characteristic, because they do not trust authority, and so that trust has to be built.
Lord Bellamy (Con)
My Lords, in relation to the first part of the question asked by the noble Lord, it is true that there are certain countries designated for men only, and so forth, in the existing schedule. The Government do not consider that that is an appropriate precedent to extend at this stage. Circumstances change and countries change, so it is much better to deal with this on an individual basis. It is probably the case, one would have thought as a matter of common sense, that, if it arises, the Government’s travel advice to particular countries, to raise one particular point, is likely to be a highly material fact, when they come to consider the risk of serious and irreversible harm.
Lord Carlile of Berriew (CB)
I am grateful to the Minister for the answer he gave to a point I raised earlier. I ask him whether, before Report, he will talk to some of those organisations which have been the secondary referrals for people who have tried to make claims that they would be in danger in unspecified other countries. They face the extreme inconsistency of quality legal advice in different parts of the country, and they often obtain quality legal advice only when some well-meaning social worker or other person refers them to the Children’s Society or some other organisation, which has a proper team of lawyers, who are able to give informed advice. Around the country, where the people we are talking about tend to be dispersed, the knowledge of this part of the law is thin.
Lord Bellamy (Con)
My Lords, the Government are always prepared to talk to anybody who would like to put forward various ideas. We will come to the question of legal advice and legal protections and procedures in a later group, where I will be very happy to elaborate on the Government’s plans in that respect.
Lord Coaker (Lab)
The judge in an Upper Tribunal would no doubt be trying to determine the will of Parliament in deciding the issues before us. In what circumstances do the Minister or the Government believe a judge would send a gay individual going to the Upper Tribunal as the result of a suspensive claim back to Nigeria or a similar country?
Lord Bellamy (Con)
I am not sure I completely understood the question. It may well be that in practice there will be various countries to which people with certain characteristics will never be sent because it is well known either at the level of the case worker and the Home Office or at the level of the judiciary that such a claim would give rise to a risk of “serious and irreversible harm”.
Lord Coaker (Lab)
Let me try again for the Minister. It is often said in court that judges were uncertain as to the intention of Parliament and it was not clear in the legislation what Parliament actually meant and therefore there was ambiguity. For the sake of avoiding any ambiguity, let us say that a suspensive claim goes to the Upper Tribunal, where the judge will determine whether that claim is right and whether an individual should be sent back to a particular country. So that the judge in the Upper Tribunal is not in danger of misreading the will of Parliament, I do not think that Parliament would want a gay individual who had failed because of the terms of the Illegal Migration Bill to be sent back to a country such as Nigeria which flogs gay men. I am asking the Minister of the Crown to say what the Government’s attitude is towards gay men in those circumstances, so that a judge in an Upper Tribunal will know what the intention of Parliament was. I hope that was clear enough for the Minister.
Lord Bellamy (Con)
My Lords, the Government’s position is that no one should be sent back if to do so would lead them to face
“a real, imminent and foreseeable risk of serious and irreversible harm”.
If that is the position in relation to gay men in Nigeria, there should be no difficulty in them satisfying those conditions.
Baroness Butler-Sloss (CB)
I am sorry to trouble the Minister again, but I have been listening to this with great interest and have two questions. First, is the Minister able to say any country outside Europe where it would be safe to send a gay man or indeed woman back? Secondly, if there are any countries, would it be possible for the Government to put those on their website?
Lord Bellamy (Con)
It will remain a question of fact in each case and the examples of relevant harm are set out in Clause 38(4), which refers to
“death … persecution … torture … inhuman or degrading treatment or punishment”
and where onward removal would raise a risk of
“real, imminent and foreseeable risk of … harm”.
If that in practice amounts to a situation in which you could not send a gay person back to that country, that would be a decision for the tribunal.
Baroness Chakrabarti (Lab)
I am so grateful to the Minister for responding with his characteristic courtesy and patience. I think I can help him, because I think the problem here arises from the Government own cake-eating, if I can put it like that. The general proposition in the Bill is that we will now decide on a blanket basis that people are to be removed, regardless of their circumstances, because of the means of their arrival, not because of the circumstances of their past and their persecution. Fair enough; that is the thinking behind the Bill. Then the Government say, “Here is the schedule of safe countries”, again on a blanket basis. Then the Government say, “But only for men”—so they have already adopted the approach that there are some countries that are safe for men but not for women. But then when my noble friends and other noble Lords in the Committee say, “But gay people are a vulnerable group in many parts of the world, just as women are”, the Minister is, I think, forced into the Government’s position of saying, “But women are not a precedent”.
That logic is not standing up to scrutiny, in this Committee at least, so I hope that, after Committee and before Report, the Minister might just consider that issue of gay people, or LGBT+ people, in particular. We all know, in this Committee, that just as there are some countries that may be safe for men but not women, there are many countries that are not safe for queer people either. Rather than playing on this sticky wicket, which he, with his characteristic grace, handles with great aplomb, perhaps before Report, the Government could think again.
Lord Bellamy (Con)
My Lords, the Government will of course consider that, as we try to consider everything that is said in this House, before Report. I simply reiterate that under Clause 5(3)(d), it still has to be
“a country or territory to which there is reason to believe P will be admitted”—
and that is probably not very likely to be satisfied in the particular countries we are talking about, such as Ghana, for example. Having responded to the noble Baroness, Lady Chakrabarti, the Government will of course consider the position.
Lord Purvis of Tweed (LD)
On that very point, what is the point of having Ghana in that schedule? There is no agreement with Ghana at all, so how do the Government know that Ghana would be unlikely to accept someone who is not admissible under the UK scheme? The UK will presumably not necessarily divulge that that person is gay.
Lord Bellamy (Con)
My Lords, I sought to explain earlier that Schedule 1 is an amalgam of all the existing schedules that exist. Ghana was already on a list of countries to which people could be sent, and the present practice is not to send people back to places where they are at serious risk. That practice will continue under this Act when you make a suspensive harm application. It is a historical situation, but it has to be dealt with on a case-by-case basis. As I said to the noble Baroness a moment ago, the Government will reflect on what has been said in this debate.
That brings me to deal specifically with the question of Rwanda and the fact that there are currently proceedings pending in relation to Rwanda, as the noble Lord, Lord Cashman, pointed out. So far, the High Court has upheld the position on Rwanda: we will see what the Court of Appeal judgment says. If the case goes further, it will be a matter for judicial decision and we will see how that works out, but we will not take Rwanda out at this stage, while the matter is still pending. I think that is also the answer, if I may say so, in relation to Amendments 43A and 49A on Hungary and Poland. These are ongoing proceedings: let us see what the outcome is and then it can be properly determined whether Poland and Hungary are countries that should remain on the list. That is not clear yet and it depends on the outcome of those pending proceedings.
I think that I am nearly through, except for the very important points raised by the noble Lord, Lord Alton, and others, as to whether we should beef up Clause 6(4)(b), which at the moment places certain requirements on the Secretary of State, in deciding on possible new countries and territories. The thrust of the amendment suggested by the noble Lord and supported by others is that effectively there should be a more detailed list of conventions and other international instruments to which the Government should have regard, with a specific obligation of consultation. The noble Baroness, Lady Chakrabarti, and others wanted in particular to enshrine the obligation to follow the decisions of domestic courts and the Human Rights Act.
The Government’s position on this—and of course, as with other things, we will reflect on it—is that these are effectively de facto covered in the existing Clause 6(4)(a) and (b). They provide that the Secretary of State must—it is a positive duty—
“have regard to all the circumstances of the country”
and
“must have regard to information from any appropriate source (including member States and international organisations)”.
That, in the Government’s view, necessarily requires the Secretary of State to have regard to case law, whether it is domestic or European; to have regard to international conventions and obligations; and to have regard to what international organisations say—and they are not exactly bashful when coming forward in this kind of area. The Secretary of State would be seriously at risk of being found to have acted irrationally or found not to have taken into account relevant considerations, if there was a major international organisation, a major convention or a major decision that had somehow been overlooked. So the combination of the normal duties of rationality and duty to take into account all relevant considerations, plus the actual wording of Clause 6(4), in the Government’s present view, covers the situation adequately.
Lord Alton of Liverpool (CB)
I am grateful to the Minister. The hour is late, and I promise not to intervene again on his remarks. Before we get to group 19, which is also linked to this amendment, or indeed before we get to Report, could the Minister arrange for his officials or perhaps for himself or his noble friend to meet the Salvation Army and the other providers and stakeholders to which I referred in my remarks? It was they who raised these concerns—and, given that they have a contract with the Home Office, they are in a pretty good position to know the territory.
Lord Bellamy (Con)
My noble friend Lord Murray tells me that that is already in train—or, certainly, there is no objection from the Government’s point of view.
Lord Cashman (Lab)
My Lords, I too thank the Minister for his patience and graciousness. Given the amendments that I raised, which I co-signed with others, particularly with the noble and learned Lord, Lord Etherton, and given the notion that deterrent trumps all, I am still not reassured that a person would not be returned to somewhere like Uganda, where you face 14 years’ imprisonment or the death penalty for “aggravated homosexuality”. I am not reassured that a person will not be sent to those countries if they are at serious risk. Historically—and I shall close on this intervention—in the Home Office, people have been told that they will be returned to countries where they should not make their sexual orientation or gender identity known. I do not want us to return to those days.
Lord Bellamy (Con)
In taking full account of what the noble Lord, Lord Cashman, has just said, which was obviously a powerful comment, I simply reiterate, as I have said to the noble Baroness, Lady Chakrabarti, that the Government will consider the content of this debate. However, I reiterate first of all that this is a judicial and not a Home Office decision, and that those concerned will need to explain to the tribunal why they do not want to be sent back to these countries.
Lord Scriven (LD)
The equality impact assessment that the Government have done on this talks particularly about sexual orientation. The very point that the noble Lord, Lord Cashman, and others have made is that people will be returned. The Government more or less say that that will be the case unless something happens:
“Where individuals are from a country where their sexual orientation is criminalised, and their exploitation is linked to their sexual orientation, they may require additional support in order to trust and engage with law enforcement”.
That is the Government’s own equality impact assessment. Where in the Bill is that extra support in place? I cannot see it anywhere in the Bill to ensure that discrimination does not take place against people from the LGBT community. Therefore, subsequently, if this support is not put in place, people from the LGBT community will be sent to places where they are unsafe due to local LGBT laws.
Lord Bellamy (Con)
My Lords, at this stage I do not think I can elaborate beyond the answers I have already given. This is going to be a matter for the judicial process—through the appeal process, the legal advice and the legal representation that these people have. If they can show serious and irreversible harm, then they will not be sent to these places.
Baroness Hamwee (LD)
My Lords, I thank the Minister for the care with which he has responded to these amendments. I do not know whether I am right, and I do not want to embarrass him, but I sensed a slight feeling of discomfort with the issues we are having to address. I applaud him for that.
It seems to me that noble Lords have been both practical and principled in this debate. I agree with the analysis about half an hour ago by the noble Baroness, Lady Chakrabarti, of the position, but the practicality has been by testing the reality of different circumstances. It was the noble Lord, Lord Coaker, who said that, when faced with the situation of somebody one knows well being in this precarious position, it all looks very different. I agree; it is rather similar to feelings about people who come from other cultures. We are suspicious of them—“But not So-and-so—no, she is fine”.
On Amendment 30, I will read the report of what the Minister has said. I was not challenging most of subsection (4). It was simply the discretion, and I take what has been said about the Secretary of State having to act reasonably and so on. Subsection (5), however, says that “exceptional circumstances include”. That, to me, raises questions about what might not be included on the face of the Bill.
The Minister is quite right that I was trying to read “prevent” as someone being put at risk, and I think the Bill should say so because a person is prevented from being removed only if, in his individual case, he falls within the exceptions. That is not the natural understanding of the term. I have to say that I remain very concerned about the issue of a part of a country. A conflict in one part of a country can spread very fast, and can the risk to an individual—if he is persona non grata in one part of the country, that can become known in another part of the country very easily—and we are talking about individuals.
I am still a bit confused about “in general”. I understand that the lists we have are an amalgam of previous lists. The Minister defends the position—I think I am right in saying—by referring to procedures that can be used to challenge a decision. We are going to get to some more of this later in the Bill, but noble Lords have already shown their concern about the very narrow circumstances in which challenges—if I can use the term broadly—can be made.
A couple of things have come up in the Minister’s response that have made me think again about these. I would have mentioned some in any event, but I sure that noble Lords will understand that I am, at this moment, speaking a little bit slowly for reasons of time. If there is to be a negotiation about a home country and whether to have a negotiation with that country, does that actually raise the risk of drawing the individual to the attention of the authorities in that country and putting that person in greater jeopardy than he may have been?
The notion of acceptance by the receiving country has also been raised. I do not know whether the Minister can answer this tonight; if he can take a couple of minutes to do so, it would be helpful. If the UK and other countries are going to say, “Will you accept this individual?”, does that not, again, put that individual in jeopardy, because the reason for his having sought asylum in the UK will become known? We are in Committee, so the Minister is free to reply if he can help at this point.
Lord Bellamy (Con)
My Lords, I expect that I am being asked to play a sort of night watchman role in continuing the batting until stumps are drawn. As far as I know, it is not the case that the Government intend to engage in negotiations in relation to particular individuals. The Government’s general policy is to engage in discussions with particular countries about reciprocal arrangements and migration partnerships. There are various reports of other countries that are currently engaged in discussions.
Subject to correction—I am sure my noble friend Lord Murray will put me right—I think it is very likely to be the case that a lot of what we have discussed tonight in relation to Ghana, Nigeria and Uganda is simply not going to arise. I know that the noble Lord, Lord Cashman, and others are sceptical about that and it may be that the Government need to provide some further reassurance to satisfy noble Lords. Perhaps the noble Baroness will forgive me for noticing the time.
Baroness Hamwee (LD)
I am grateful to the Minister. That has raised further issues in my mind about what information may be given—not necessarily about an individual—to a receiving country, whether the questions may be asked and how the UK responds.
I think stumps probably can be drawn, though it is not in my gift to say so. I beg leave to withdraw Amendment 30.
Lord Murray of Blidworth
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 7, line 17.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 7, line 17.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 7, line 17.
Lord Murray of Blidworth
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 7, line 17.
Lord Murray of Blidworth
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 7, line 17.