EU: Justice and Home Affairs (EUC Report)

Lord Hannay of Chiswick Excerpts

Tuesday 22nd July 2014 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

To move that this House takes note of the report of the European Union Committee on Strategic Guidelines for the EU’s Next Justice And Home Affairs Programme: Steady as She Goes (13th Report, Session 2013-14, HL Paper 173).

[Lord Hannay of Chiswick (CB)]

My Lords, my task in opening this debate is to address the recommendations made by your Lordships’ EU Select Committee with respect to the strategic objectives to be set by the Governments of the 28 member states for the development of the European Union’s justice and home affairs programme for the next five years—that is to say, from 2015 to 2019. The Government’s response to these recommendations is also available and much of what I have to say will be directed to that response. For good measure, we also now have the European Council’s conclusions/decisions on its strategic objectives for the period ahead, which were reached on 27 June and which are available in EUCO 79/14. So, rather unusually, in this debate we are debating the whole issue in the round, from the inquiry and report by your Lordships’ House through the process of negotiation to its completion.

I am speaking as the former chair—until the end of the last session, in May this year—of the EU Select Committee’s Sub-Committee on Home Affairs, Health and Education, which was responsible for the report we are debating. In doing so, I pay tribute to the members of my own sub-committee, to the members of the justice sub-committee who participated in our work, and to the three successive clerks—whose help and support in the last four years was so invaluable to me—Michael Torrance, Chris Atkinson and Michael Collon twice.

Looking back, as we did when we wrote this report, at the rapid development of the EU’s activity in the field of justice and home affairs over the last 20 years, we considered carefully what were the main drivers of that increased activity. On the basis of the evidence that was put before us and the evidence submitted to us in the context of other recent inquiries, particularly those into the block opt-out under Protocol 36 of the Lisbon treaty, we concluded that the main driver was the challenge from the massive increase in serious international criminal activity in recent years. That increase has been not only in volume but also in complexity. It has been marked by the unwelcome arrival of many new fields of criminal activity—in human trafficking, drugs, terrorism, cybercrime, child pornography and financial fraud.

It was our view that none of these challenges could be adequately combated without intensive international co-operation. If you doubt that, just look at the steadily increasing use being made by our own law enforcement agencies of such EU agencies as Europol and Eurojust. The case for much of this justice and home affairs activity is simple: it is to protect our own national security. Those who criticise this development need to explain convincingly how that could be better achieved in some different way. So far they have failed to explain that at all.

We were also clear that in the five years ahead the emphasis needed to be on consolidation and implementation and not on the proliferation of new legislation, which should be brought forward only if there is strong evidence of the need for it. I am glad to note that the Government, the Commission and now, most importantly, the European Council agreed that this should be a period of consolidation and implementation, and those words appear in their conclusions. That approach is encapsulated—slightly more crisply than the European Council managed—in the title of our report, Steady as She Goes.

Within this overall ordering of priorities, we urged that emphasis should be put on the following four main areas. First is the completion of the existing legislative programme. This includes important measures to reform and Lisbonise—it is a terrible word—Europol and Eurojust. It includes the proposals for passenger name recognition and the personal data protection package. Those are all big bits of legislation which remain unfinished and on which much work remains to be done. There are other, less prominent measures still in the pipeline. It does not include the proposal for a European public prosecutor’s office, which we continue to believe does not properly fulfil the criteria of subsidiarity and against participation in which the United Kingdom is protected by clear treaty provisions.

Secondly, we focused on the implementation of all existing justice and home affairs legislation in all member states, which is lamentably not currently the case. This country has its lapses, too, in that respect. One example is the European supervision order, which was mentioned in debate last Thursday. Fortunately that measure, which will enable British citizens to be bailed here until their cases are ready to be tried, is on the Government’s list for rejoining and should be in effect by the end of this year, a mere two years late. Will the Minister confirm that that will, indeed, be the case, assuming that the package on Protocol 36 goes through?

Thirdly, we urged that there should be much more systematic and effective evaluation of justice and home affairs legislation. So far, such evaluation at the European level has been patchy and inadequate and I am glad that the European Council has now agreed that there should be a review in 2015 of the internal security strategy and that there should be an overall review of the justice and home affairs strategic objectives, which we are debating this evening, in 2017, half way through the new programme period. That is a step forward and I hope the Government will be really vigilant in making these processes of evaluation more effective. Fourthly, we emphasised the critical importance of the adequate resourcing and the sound management of the European Union’s agencies: of Europol, Eurojust, the EMCDDA for drugs, ENISA for the internet, FRONTEX and the new asylum agency in Malta. Much of the success or failure of the EU and its member states in their fight against international crime will depend on the practical co-operation which these agencies can provide and engender.

I will say a word or two about the Government’s response to our recommendations. I am glad to say that this was broadly positive and I am grateful for that, even if the tone was, from time to time, just a touch grudging. However, there were a few points of misunderstanding which I tried to clear up. First, we never intended to suggest that evaluation should be entirely and solely in the hands of the Commission: it should not. However, we cannot possibly imagine these programmes being evaluated properly without the full and active co-operation and participation of the Commission, whose task it is to help to carry them out. That co-operation was not forthcoming during the evaluation carried out during the preceding Stockholm programme and it was, frankly, a pretty useless affair. Now that the European Council has mandated an evaluation process, the Commission must be involved. I am sure they will be and the Government should not find that problematic in any way.

Secondly, we made a proposal for an annual implementation scorecard showing—and naming and shaming—which member states had fallen behind on implementing justice and home affairs legislation. This could genuinely be helpful and could work to the UK’s national interest in securing a level playing field. We were not proposing, and we would not support, the much more ambitious type of scorecard championed by the former vice-president, Viviane Reding, which would involve evaluating the overall judicial system of the member states. That is not something the Commission is well placed to do and it ought not to be doing it. The sort of scorecard we suggest would be valuable and I hope the Government will have a further look at that now to see whether it is something they could push forward.

Thirdly, on the challenge of using the yellow card—the subsidiarity procedure—which is of great importance in such a sensitive area as justice and home affairs legislation, how can we make that more effective? The Government seem to have accepted our approach, under which the Commission could, without any need to change the treaty, give national parliaments 12 or 16 weeks rather than the current eight weeks to submit a reasoned opinion, agree to withdraw or to substantially amend any proposal that was the object of a yellow card, and accept that proportionality considerations could be properly raised in a reasoned opinion. Those three reforms would do a lot to make the yellow card work better. I trust that the Government will now be pressing ahead with these ideas. Perhaps the Minister could say how that is going to be carried forward.

In conclusion, I suggest that this inquiry and this report have demonstrated how your Lordships’ Select Committee can insert itself effectively into the shaping of EU policies by formulating and presenting its views upstream of formal policy proposals becoming set in concrete. That surely needs to be something that we try to do more often in the future. On the next occasion that the noble Lord, Lord Pearson of Rannoch, presents himself here and unleashes one of his familiar tirades of complaint against the uselessness of the scrutiny procedure, I look forward to hearing him pay tribute to this report on the EU’s strategic objectives as having shown that we can be effective in that process. I may have to wait quite some time for that tribute but I will do so with patience and in hope.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I thank all noble Lords who have taken part in this reasonably short debate. In particular I thank the Minister for the considered way in which he has responded to all the questions that were asked. I am delighted that he will have another look at the scorecard idea.

I have two points. The point made by the noble Baroness, Lady Smith, about the importance of the way that crime is dealt with in other member states as being part of our national security is one that is not terribly well grasped. The noble Lord, Lord Judd, made that point, too. In the world we now live in, with a highly integrated European market, the fact is that the criminals are half way down the track before we have left the start line. Measures of co-operation of the sort we have been debating are the way in which we are going to catch up with them and, it is hoped, get ahead of them and catch them—because these things often happen elsewhere than in the UK, but then the criminals come here and continue their activities. There are many ways in which these cross-border crimes continue. The noble Lord and the Government have got the balance about right now and I hope that this will lead to what I was delighted to see was a commitment to Britain’s membership of the Justice and Home Affairs Council that goes beyond the fatal date of 2017. That was a welcome sign indeed. I hope that when the Protocol 36 negotiation is finally concluded—successfully, we must all hope—the Government will again become, after a year of necessary negotiation, a full participant in this field to which we have contributed an enormous amount over the years, and from which we have gained a large amount.

Motion agreed.

Justice and Home Affairs: United Kingdom Opt-Outs

Lord Hannay of Chiswick Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the Minister has introduced our debate today with his customary clarity and courtesy. If I have some critical things to say about the Government’s handling of Protocol 36 of the Lisbon treaty, of the block opt-out and of the reinsertion negotiation—which looks as if it may now be close to closure—that in no sense detracts from my respect for the way that he has managed the debates in this House. I rather suspect that he, like me, would have felt some relief if this had indeed marked the final parliamentary stage in this saga, but that is not to be. I understand from what the Home Secretary said in the other place that there will be a full debate and vote there at the conclusion of these proceedings. Like the noble Lord, Lord Sharkey, I would be grateful if the Minister would confirm that the same will be true in this place.

I will not weary the House with a detailed reprise of the previous stages of our debates. Suffice it to say that your Lordships’ EU Select Committee remained unconvinced by the Government’s case for triggering a block opt-out in the first place. We also found serious fault with the Government’s failure to live up to their original commitments on consultation before they took any decisions, and we believe that the list of reinsertion items should have been a bit longer. All that is now water under the bridge. Last July, this House—unlike the other place—endorsed the list of 35 reinsertion measures in Command Paper 8671. I hope that some lessons will be learnt for the future and that some of the mistakes made will not be repeated.

Command Paper 8897, the White Paper that we are debating today, lists and provides impact assessments for 35 measures that we hope to rejoin on 1 December. As the Minister made clear, those measures are not in all respects the same as the 35 that we debated last July, five having fallen by the wayside for reasons that other noble Lords have mentioned, and five having been added to the list, some of them drawn from the list suggested by your Lordships’ Select Committee in its second report last October. I express gratitude for the fact that these measures in our proposal of last October have been rejoined, or are candidates for rejoining. I note with some amusement, however, that the Home Secretary did not care to attribute much credit to this House for the additions to the list, nor—I was fascinated to see—did the Order Paper in the House of Commons even refer to the two extremely lengthy reports prepared by this House. Among the long list of reports from Select Committees, it referred to all the fairly content-free reports that the Commons’ own committees produced, but did not refer to the reports from your Lordships’ House. I deduce from this that the length of the corridor is quite long.

In any case, the Minister has explained the list, and the additions show some flexibility which is to be warmly welcomed. Your Lordships’ House can, as I say, claim credit for some of that. I only wish that the list of additions could have been a bit longer. I remain completely baffled by the rationale for our refusing to proscribe the crimes of xenophobia and racism. I do not think that that is in the sense of what are known as British values, and I am sad that we have not rejoined that.

On the matter of impact assessments, the ones before the House have been provided in a very short time before our debate, and in an even shorter time before the debate in the other place. I do not think that that was very satisfactory. Having examined the debate in the other place, I did not notice a great appetite for grappling with anything as complex, detailed or factual as the impact assessments; but, nevertheless, they did not have very long to think about them. That really is not the way to handle parliamentary process. Moreover, we have still not been given any impact assessments for the 90 or so measures we are not going to rejoin, despite repeated requests for them to be provided—most recently today by my noble friend Lady Prashar and others who spoke in this debate. Withdrawing from these measures will of course have an impact. I do not imagine that the Minister is going to rise at the end of this debate and tell us that it will not have an impact. If he does, he will of course have to answer the question: why on earth are we withdrawing from them if there is no impact? Let us assume that they do have an impact. In that case, Parliament deserves to be told what that impact is. It has not been. I think that that was a bad way of handling this, and I continue to think so.

I think that it is right to dwell for a moment on one other specific item that is on the list of measures that the Government wish to rejoin, the European supervision order, which provides for our citizens and, indeed, the citizens of other member states who are indicted in another member state and extradited under an arrest warrant, to be bailed in their own country until such time as their case is brought to court. This is, of course, the sovereign remedy to the injustice that occurred in the notorious Symeou case, when one of our citizens languished in a Greek jail for many months before being brought to trial. Had we respected the deadline in the European supervision order legislation—which we agreed to ourselves—we would have introduced that legislation in this country in December 2012. But we did not. We did not respect that deadline and so the European supervision order was caught up in the cat’s cradle of Protocol 36, block opt-out, reinsertion, et cetera. Now the earliest it will become available—the possibility for a British citizen to be bailed in this country if they are accused of a crime in another member state—is December 2014. For two years, therefore, British citizens have been deprived of any possible recourse to that relief. That is not an outcome of which we can be unduly proud.

That said, I pay tribute to the tenacity and flexibility with which the Government have handled the last year of complex negotiations in Brussels. Credit needs to be given—and I would give it—to everyone from Ministers down through officials and members of the UK permanent representation, who I know have put in a huge amount of time on this. In fact, as I have said in previous debates, this Government did not devise the infernal machinery of Protocol 36, they were handed it when they took office.

Are there any wider lessons to be learnt from this episode? One is that it is in our national interest to participate actively in the European Union’s justice and home affairs work if we are to combat effectively the rising tide of serious international crime. Noble Lords might not have thought that from listening to last week’s debate in the other place, redolent as it was with references to every statute from Magna Carta onwards being trampled under foot—but that, fortunately, was the conclusion of the Government as well when they decided to rejoin the 35 measures that we are discussing today, and when, on a day-by-day basis and in a pragmatic way, they opt in to new justice and home affairs measures. It is the view that was endorsed by this House last July.

As we approach decisions on these other tricky issues relating to our EU membership, let us not forget that it is seldom a clear black and white issue, and that flexibility and a spirit of compromise can often produce the best result.

Immigration

Lord Hannay of Chiswick Excerpts

Monday 12th May 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I must correct my noble friend on a matter of fact in that all our major competitors, including the US and Australia, count students as migrants. I hope I may explain why that is the case. In 2013, 115,000 people who came to the UK as students extended their stay—70,000 or so, or 62%, for further study and 38,000 for work. The Tier 4 system offers flexibility to allow these high-value individuals to extend their visa. However, not to include them as immigrants is against the practice in other competitor countries and is against our interests in making sure that we know who is here, why they are here and what they are doing when they are here.

[Lord Hannay of Chiswick (CB)]

My Lords, does the Minister recognise that this is not a problem of statistics or the presentation of statistics? I entirely agree with his very welcome statement of the Government’s intentions but will he add just a few words—that in future the Government do not intend to treat students as immigrants for public policy purposes?

[Lord Taylor of Holbeach]

I have to make it clear that we treat them as immigrants for statistical purposes. The point of my argument is that students come here not just for six months or so but to pursue a course of study and, following that course of study, they go on to do other things. We delude ourselves if we think this is an alternative track that we can separate out from migration in general. The point I have made is that it makes no difference to our policy position, which is that the brightest and best should come here. I did not answer my noble friend’s question on STEM. Of course, STEM subjects are important. That is why STEM students from China went up by 7%, those from Malaysia by 1% and those from Hong Kong by 20% between 2011 and 2013. We are at one on this and I wish that noble Lords would accept the Government’s good faith in that regard.

European Union: Justice and Home Affairs

Lord Hannay of Chiswick Excerpts

Thursday 8th May 2014 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, 2014 is a critical year for Europe. Within weeks, we will have a new European Parliament and, within months, a new EU Commission. There can be no doubt that the face of Europe is changing, just as it has changed dramatically over the past 25 years.

One of the changes we want to see is the EU becoming more flexible. The Dutch express this as: “Europe where necessary, national where possible”. This is our approach when it comes to justice and home affairs. In some cases, there are clear benefits from working at a European level. In others, it makes sense to operate at national level. Noble Lords will be aware that, under Protocol 21 to the treaties, the UK enjoys the right to choose whether to opt in to new justice and home affairs measures brought forward by the European Commission.

The previous Government made a commitment to table a report every year on the operation of the opt-in. Because of this Government’s strong commitment to parliamentary scrutiny, we have maintained that pledge. We have published reports every year since 2011 on the matter and we have also included in those reports figures on the so-called Schengen opt-out under Protocol 19 to the treaties. This provision allows the UK to decide whether to opt out of Schengen-building measures. The latest report was published on 23 January this year. Part of the Government’s scrutiny commitment is that the report will be made available for debate—which is precisely what noble Lords are invited to do today.

Noble Lords will have observed that there are two Motions on the Order Paper. This Motion relates to the UK’s 2014 decision to opt out of all police and criminal justice measures agreed before the entry into force of the Lisbon treaty. This matter will be familiar to many noble Lords, for it has been subject to much debate in this House and the other place.

On 23 January this year, my noble friend Lord Taylor, who will respond to this debate, closed what was a most impressive debate in this House on the matter. Of course, the matter was debated at length last year when this House endorsed the Government’s decision to exercise the opt-out and seek to rejoin the 35 measures set out in Command Paper 8671.

The Government have also committed to returning to Parliament for a further vote before formally seeking to rejoin any measures. That vote will be held well ahead of 1 December this year. Before that, it is appropriate that Parliament is given every opportunity to scrutinise this important issue. That is why today we are providing noble Lords with additional time to look at the matter, as the Government recently did in the other place, and there will be additional time to debate the matter later this year.

I turn first to the annual opt-in report. The bare facts are these: in the period covered by the report— 1 December 2012 to 30 November 2013—the UK opted in to 13 proposals under the JHA protocol, and decided not to opt in to a further eight. Decisions on whether to opt in to a proposal are taken on a case-by-case basis, but some basic criteria are applied. For each measure, they are: what will be the impact on our security, on our civil liberties, on the integrity of our criminal justice system or on the ability for us to control our borders? How might our system of common law, shared by only a small, select group of other member states, be affected? Over and above everything else, what is in our national interest?

The report shows that last year, for example, we opted in to a Council decision relating to an agreement between the EU and Canada on the transfer of passenger name record data. Such data, known as PNR data, have real value in the tracking down of people suspected of the most serious crimes, and are already used by the UK in our border systems programme. Indeed, the provisions outlined in the Council decision are already in place, so here was a practical agreement, in the public interest, that the UK could support and be part of.

Other examples included proposals to improve insolvency proceedings, and a welcome and important clarification to the rules governing jurisdiction—as set out in the Brussels 1 regulation—which will make way for the creation of the unified patent court in January next year.

Noble Lords will also be aware that in August last year the Commission published a proposal for a European Public Prosecutor’s Office. The coalition agreement made it clear that the Government would not take part in the European Public Prosecutor’s Office, so we did not opt in. A centralised European prosecutor with harmonised powers to initiate investigations and order investigative measures is incompatible with the division of responsibilities in the UK between law enforcement and prosecutors and the role of the independent judiciary. The idea of a single legal area is an unwelcome move towards harmonisation. That is not to say that we do not wish to co-operate at all with our European partners in ensuring the prosecution of crime and the detection of offenders.

In addition, we do not believe that the EPPO is an appropriate or proportionate response to tackling fraud against the EU’s budget. A body working at EU level would, at best, duplicate the efforts of dedicated organisations working at a national level; at worst, it could hamper efforts to prevent fraud at national level. Reflecting that view, this House and the House of Commons shared the view that this was not something that was best tackled at EU level. Both Houses issued reasoned opinions that the proposal breached the subsidiarity principle. Simply put, that is the principle that, in areas of shared competence between the EU and member states where action can be taken at member-state level, it should be so taken. EU-level action should be reserved for those areas where it can genuinely add value.

I offer the European Public Prosecutor’s Office as an example—perhaps the most high-profile one—of where the Government have taken the view that it is not in the national interest to opt in to a measure. Others are set out in the report, but I know that many noble Lords will wish to bring their considerable expertise to bear on these issues so I will not detain the House any longer on the annual opt-in report.

I shall return briefly to the 2014 decision. I first express my thanks to the EU Committee of this House for its ongoing work in scrutinising this matter. It is an issue in which I know a number of noble Lords have taken a keen interest, and the Government are grateful to them for their work in this area and for the considerable expertise that is brought to bear on the consideration of relevant issues. We are grateful not least to the noble Lords, Lord Hannay and Lord Boswell, and the noble Baroness, Lady Corston, for their ongoing analysis of an extremely complex issue. Their committees have produced two extremely thorough and valuable reports on this subject and I want to express my thanks on behalf of the Government for their chairmanship.

I turn to the progress on negotiations to seek to rejoin measures. I pause at this stage gratefully to acknowledge that the noble Lord, Lord Hannay, was good enough to provide an advance indication of the remarks that he proposes to make in this debate. I know that one area that he—and, I am sure, other Members of the House—will raise is the possibility, to put it crudely, of the Government dropping the ball during the negotiations. I will endeavour to say what I can about that in my following remarks.

The process for rejoining measures depends on whether they are classified as Schengen or non-Schengen measures. On the Schengen side, a Friends of the Presidency working group has been established in Brussels to discuss all the issues for member states, linked to the end of the five-year transitional period set out in Article 10 of Protocol 36. This working group will also allow us to discuss the Schengen measures which we are seeking to rejoin and agree the decision which will allow us to do so formally.

The House will doubtless be anxious for me to address the question of what other member states have said about our package of measures. They have been broadly supportive of the UK’s position. There are of course many technical matters that are subject to discussion. These include whether measures are now obsolete or whether, and to what extent, new measures will replace old ones. That is precisely what this working group has been set up to do. At the appropriate time, when a conclusion has been reached, we will update Parliament on these matters—but, as I am sure the House will understand, it would not be appropriate to do so now when there are still discussions to be had.

Discussions with the Commission on the non-Schengen side are also ongoing. As we are sure noble Lords will also appreciate, this is a particularly complex matter and a great many process and technical matters have to be discussed. We must be mindful that this is a negotiation and, as such, we do not wish in any way to prejudice our position in these negotiations. To do so would not be in anyone’s interest. However, I can say that these discussions have been very constructive and our aim remains to reach an in-principle deal well ahead of 1 December, and return to Parliament for a further vote before formally seeking to rejoin measures. We want to ensure that there are no operational gaps, and our European partners appreciate this. That is perhaps reflected in the fact that we exercised the opt-out in July 2013—although the deadline was May of this year—to give us enough time to undertake these negotiations.

The Government have been clear throughout this process that Parliament will be given a vote on the final list of measures that the Government apply to rejoin, and I am happy to repeat that commitment today. Scrutiny can be an iterative and long-running process, especially on a matter such as this. That is why we will debate the matter at length again later in the year and why we have committed to producing a full impact assessment on the measures we seek to rejoin in good time, before a second vote. It is important that Parliament is given the opportunity to scrutinise the matter fully. I look forward to hearing the contributions of noble Lords when we return to Parliament later in the year.

Perhaps I may return to the main business of the day, the annual opt-in report. I commend this report to the House and look forward hearing your Lordships’ views on its content.

[Lord Hannay of Chiswick (CB)]

My Lords—

[Lord Pearson of Rannoch (UKIP)]

My Lords—

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

The Question is that this Motion be agreed to.

[Lord Hannay of Chiswick]

My Lords, I did wish to intervene in the Minister’s speech. I hope that is in order; I was on my feet before the Question was put. The noble Lord very helpfully gave an undertaking about the provision of an impact assessment for the measures that the Government are seeking to rejoin. However, he will be aware that in discussions with Ministers, the committees of this House have made it clear on a number of occasions that it is equally important that at that point there should also be an impact assessment, which has so far not been provided, on the measures that the Government are not seeking to rejoin. I wonder whether the Minister could give us some undertaking on that aspect. It really is rather important that the impact assessments provided should not be partial and limited to the measures that the Government wish to rejoin, because there will of course be impacts from the measures that the Government do not wish to rejoin. The House will need to be aware of those before it debates and votes on the final package to rejoin.

[Lord Skelmersdale (Con)]

My Lords, the Question has already been put so I very much regret that, in my view at least, the noble Lord, Lord Hannay, is somewhat out of order. I therefore suggest that my noble friends on the Front Bench do not answer him now but do so at the end of the debate.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I regret to have triggered a minor kerfuffle of a procedural kind. I merely observe that I was on my feet before the Motion was moved and I expressed no criticism whatever of either the Minister or the noble Lord on the Woolsack for not having seen me as I speak from a rather dark and distant corner of your Lordships’ House. I do not accept that I expressed a lack of patience as the Minister quite explicitly referred to impact assessments only for the measures we are opting back in to and not those that we are not opting back in to. That was a precise point—he will not speak again in this debate—which I thought it was reasonable to put to him. I have so much patience that I did not intervene further in the kerfuffle and I am very happy to wait for the noble Lord, Lord Taylor, to answer that question as I shall be putting it again now. But I do not think it was either out of order or a matter of lack of patience.

The debate today, which was introduced very carefully, clearly and helpfully by the Minister is, as he explained, a double-header. It deals, first, with the 2014 block opt-out, including the Government’s decision in the national interest to seek to rejoin 35 of the measures so covered, and secondly, with the Government’s report on these routine individual opt-in and opt-out decisions in the 2012-13 period. Both parts of the debate fall within the scope of two sub-committees of the EU Committee—that chaired by the noble Baroness, Lady Corston, and that which I have the honour to chair. I will begin with some remarks on the block opt-out, which is, as has been recognised by all speakers up to now, far and away the more significant of the two topics we are dealing with.

I will not weary the House with a lengthy recapitulation of our committees’ views on the block opt-out; all that was comprehensively debated last July and again on 23 January of this year. Suffice it to say that we remain unconvinced of the Government’s case for triggering the block opt-out in the first place; that we support the Government’s bid to rejoin the 35 measures they identified in Command Paper 8671; and that we hope that they will negotiate with the Commission with flexibility on the issue of coherence and will consider rejoining a modest additional number of measures identified in our report of last October.

The count down to the deadline of 1 December when, in the absence of any positive decisions over rejoining, the UK will have excluded itself from all those pre-Lisbon measures, is now well under way. To judge by the Minister’s report, there has not been a huge amount of progress registered on the bid to rejoin 35 of those measures. Although I respect his feeling that he cannot be more precise at this stage, I thought that the report that he gave the House was helpful, within those limits. Can he confirm that the Government’s target and wish is to reach political agreement with the Commission and the Council by the time of the European Council meeting in June and then to put to Parliament a package for a second vote before the Summer Recess, if that were to prove possible? If so, can he assure the House that adequate advance notice will be given and that the necessary impact assessments will be provided ahead of that vote, both on the impact of the measures we will be rejoining and those we will not? That is the point I made in my earlier intervention.

Can the Minister also say what contingency plans the Government have for the eventuality of full agreement not having been reached with the Commission and the other member states by the 1 December deadline and, in particular, what transitional arrangements, such as are provided for in the treaty, could be envisaged? These things cannot be improvised at the last moment, and particularly tricky issues could arise involving individuals in respect of the European arrest warrant. That point was made very cogently by the noble Lord, Lord Kennedy. Does the Minister agree that the worst possible outcome would be if a legal vacuum were to be created with respect to the 35 measures which the Government consider, and which this House endorsed, as being in our national interest to rejoin?

On the Government’s report on the 2012-13 individual opt-ins and opt-outs, the situation is far from satisfactory. For one thing, the Government have so far declined to opt in to a number of measures which our committee concluded it was in the UK’s interest to opt in to from the outset. In particular, we regret the decision not to opt in at the outset to the negotiations on the new Europol proposals. Can the Minister confirm that the Government’s objective remains a post-adoption opt-in to that measure? As the noble Lord, Lord Teverson, said, the practice of negotiating from the outside and rejoining as a post-adoption opt-in decision seems to be spreading. Our concern in the committee that I chair is that this approach reduces our negotiating leverage and risks final outcomes which would not be in this country’s interest. In that respect, can the Minister say whether, now that the proceeds of crime directive, which your Lordships’ House would have wished to opt in to from the outset but the Government decided not to do so, has been agreed through co-decision and is on the statute book, it is the Government’s intention to go for a post-adoption opt-in to that measure? It would surely be quite aberrant if the UK was to exclude itself from a piece of legislation for which we have been pressing for many years and which is essential if we are to pursue effectively those criminals who have managed to transfer the proceeds of their crimes to other member states?

We regret, too, that the Government chose not to opt in to the readmission agreements with Cape Verde and Armenia. We believe the case for doing so, and thus for demonstrating a less than semi-detached attitude to those agreements, is unconvincing. Can the Minister confirm that the Government intend to opt in to the recently concluded readmission agreement with Turkey, on which we are awaiting notification within the normal time limits of that measure?

Worrying evidence has come to light that the Government are not adept, to put it mildly, at applying the simplest arithmetical aspects of the opt-in/opt-out system. Recently, I understand, it came to light that the Government had failed to opt in before the deadline had expired to a JHA provision of the association agreement with Kosovo, so we apparently are not party to that agreement, even though we were among its leading protagonists. What is being done to remedy that? Also, quite recently, the Government’s decision to opt in to the member state initiative concerning the move of the seat of CEPOL from Bramshill in this country to Budapest was taken only on the last possible day available, and Parliament was notified of the opt-in only the day after the last day had elapsed. I suggest that that rather drove a coach and horses though the Ashton/Lidington commitments in respect of that piece of legislation.

In that instance, our committee agreed with the substance of the Government’s decision to opt in but the point I am making concerns parliamentary procedure and the way that solemn commitments have been entered in to and are not being applied very correctly. The last time we debated one of these annual reports on 3 July 2013, also in the wake of an unfortunate procedural failure in applying those commitments, the noble Lord, Lord Taylor, who is replying to this debate, said that it would not happen again. Well, it has done. Can the Minister say what is being done to apply these procedures in a more rigorous and timely fashion?

I am sorry to be rather critical, but it is not acceptable for the Government to fail, either by omission or commission, to stick to commitments entered in to as part of the process of ratifying the Lisbon treaty. If this debate has done nothing else, it will have demonstrated the need for these annual reports, for which I am grateful to the Government for supplying, and the need, too, for the House to debate them. I am grateful for the opportunity to do that today.

--- Later in debate ---

[Lord Pearson of Rannoch]

My Lords, it is of course a pleasure to follow the noble Lord, Lord Dykes, who expresses with such purity his enthusiasm for the European dream, which is, of course, also shared by so many of your Lordships, blissfully unaware that the dream has turned into a nightmare for millions of people in this country and elsewhere in Europe.

As to the Motions before us, it appears that the corrupt octopus in Brussels is putting a tentacle round yet more of our sovereignty and, once again, the Government are a willing accomplice. It is small wonder that the British people are getting angrier by the day and more disdainful of us, their political and bureaucratic class. The Prime Minister, addressing the Conservative Party conference on 4 November 2009, said:

“The third area where we will negotiate for a return of powers is criminal justice. We must be sure that the measures included in the Lisbon Treaty will not bring creeping control over our criminal justice system by EU judges. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level, and ensuring that only British authorities can initiate criminal investigations in Britain”.

He continued with really quite a good bit:

“I recognise, of course, that taking back power in these areas, or negotiating arrangements that suit the UK, is not something we can do unilaterally. It means changing the rules of an institution of which we are a member—changing rules that Britain has signed up to. If we want to make changes, we will need to do that through negotiation with our European partners, and we will need the agreement of all twenty seven member states”.

I trust your Lordships will agree that that is a pretty clear commitment to the return of powers to this country from Brussels in our criminal justice system and, indeed, as we know from the Prime Minister, elsewhere.

However, Mr Cameron spoke with slippery inaccuracy, to put it politely, when he said that of course he would have to gain the consent of all 27 other member states in order to achieve his aim. He may have thought, as a committed Europhile, that he was giving himself an escape route from his promise, in which he clearly did not believe. The point is, of course, that by 4 November 2009 the Lisbon treaty was already law, complete with its block opt-out for the UK from all 135 criminal justice measures. When he made that speech he was simply not telling the truth—or let me be generous and put it down to ignorance—because we did not, and do not, need the consent of any other member state to escape from any or every one of these wretched measures.

In fact, we have now opted out of all of them. All we need to do is to leave it at that, but no—in direct contradiction to Mr Cameron’s promise, his Government are proposing to opt back in to the most pernicious of them, including the infamous European arrest warrant. I do not really want to descend into its sordid detail, or indeed that of Eurojust, or the freezing of evidence and confiscation orders. The wider point is that all these areas have been under the sole control of Parliament for centuries and the Government intend to put them within the jurisdiction of that engine of European integration, the Luxembourg court of so-called justice.

The Government and those who support that transfer do not seem to understand that it is simply not acceptable to the British people for them to be liable to be extradited, to stand trial in an inferior foreign jurisdiction, at the request of an inferior foreign investigator—perhaps for a crime that is not even a crime in this country, such as xenophobia—and left to rot for months in a foreign jail before being tried without a jury.

[Lord Hannay of Chiswick]

Perhaps the noble Lord could spend just a little time on the sordid detail of the European arrest warrant. Does he object to us being able to get criminals back from Spain, France, Germany or Italy in order that we can try them and, if necessary, convict them for crimes of a very serious nature? Does he regard as sordid detail the fact that we are able to return nationals of other member states rapidly to their countries, where they have committed or are indicted for crimes, at a time when they are in this country and possibly at risk of committing more crimes?

[Lord Pearson of Rannoch]

My Lords, all that can be done as it was done for a very long time, by intergovernmental collaboration. I object to the fact that any one of our citizens should be treated as Andrew Symeou was treated. I do not think that the convenient price that the noble Lord advances for this awful piece of legislation is worth the candle, nor do many British people—actually, most British people.

As I was saying, it is not good enough to say that this is convenient for our police and bureaucracy, which is what the noble Lord was indicating. It is not good enough to say that crime crosses borders, and that all these often corrupt jurisdictions have signed up to the European Charter of Fundamental Rights so they must be as fair as our own. None of these excuses washes with real people in this country. Just one Andrew Symeou case is too many, and there have been others.

Nor is it an excuse for Mr Cameron and the Conservative Party to say that one of the last areas of our national sovereignty is being tossed to the octopus because they are in coalition with the Liberal Democrats, who love this sort of thing—hence, their present standing in the opinion polls. The coalition agreement pledged to,

“ensure that there is no further transfer of sovereignty or powers over the course of the next Parliament”.

Then we had the Queen’s Speech on 25 May 2010, which reaffirmed that legislation would be introduced,

“to ensure that in future this Parliament and the British people have their say on any proposed transfer of powers to the European Union”.

We then had the European Union Act on 19 July 2011. Your Lordships will forgive me, but I have still not understood why these proposed opt-ins do not trigger the national referendum required by that Act. We still have the power to opt out of all these measures, and indeed have done so, so why is opting back in not a transfer of sovereignty?

Perhaps I may ask the Minister another question. If a national referendum was held on whether we should opt in to these measures, how does he think the vote would go? Does the answer, that the British public would reject it in large measure, not show why the Government are practising this dishonest sophistry to deny our people that vote, which they have indeed promised, however they try to wriggle out of it?

My third question—I think for the noble Lord, Lord Taylor, who is to answer in this debate—is the one that I attempted to put before his noble friend Lord Faulks finished his introduction, and I apologise if I was not in order in doing so. The noble Lord, Lord Faulks, said that the Government had nobly refused to join the EU’s proposal for a European public prosecutor because it is inimical to our tried and tested legal system of police, prosecutor, court and jury, each with their separate function. My question is whether the EU’s proposal of its foreign system does not show where the EU intends eventually to go. By agreeing to the 35 measures, are the Government not giving in to yet more EU salami-slicing, in its well known fashion, along the way to its final goal? Even the noble Lord, Lord Dykes, in his peroration, said that a European public prosecutor was perhaps a little premature—quite so: it is premature indeed.

I thought of not speaking in this debate because this sort of behaviour by the Government and the Labour Party can do nothing but increase the support for my party, the UK Independence Party—UKIP is the only vehicle that our people can use to free them from the failed and ruinous experiment of European integration—but, on reflection, I decided to do so because I know that what I have to say today will not have the slightest effect on the Government, just as it has not for the past 22 years, so I thought that I might as well at least put the feelings of real people on the record in your Lordships’ House.

The Government and Labour are toying with the liberty of the individual—with the liberty of our citizens, than which they hold few greater responsibilities. Our people do not like this; they do not like the European Union, and will eventually demand to leave the whole ill fated venture.

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[Lord Taylor of Holbeach]

I always have difficulty in trying to persuade the noble Lord on this issue because he clearly has a very different opinion. I would just say that the opt-out position was exactly that. We were already involved. The treaty decisions had been taken in that respect. I am perfectly accurate in the answer that I gave him. If the noble Lord wants a referendum he should vote for the Conservative Party at the next election because we have offered a referendum in the case of a successful outcome for the Conservative Party at that time.

The noble Lord also asked about the European public prosecutor and used that as a sign of the future direction of the EU. I must say to the noble Lord that the UK negotiated an opt-in to ensure that where a proposal is not in the UK’s national interest, we do not take part. The ability of Parliaments to issue reasoned opinions on subsidiarity issues related to Commission proposals is a further check on the Commission’s bringing forward proposals outside the intent of those treaties. I hope that the noble Lord will consider what I have said and see exactly how the Government are approaching this issue.

I thank the noble Lord, Lord Hannay, for providing us with a draft of what he was going to say because that enabled us to focus on those particular interests. I will attempt to respond to them. He asked, first, whether the Government will opt in to the Europol regulation post adoption. The Government did not opt in to the Europol regulation initially due to concerns about the obligation to provide data, even where it may conflict with national security. I think I have made that clear before. As the regulation makes subject to the jurisdiction of the European Court of Justice member states’ reasons for not undertaking an investigation requested by Europol, this creates a risk that the Court could dictate national law enforcement priorities. The Government have committed to opting in post adoption if these concerns are mitigated. That is our intention, and I explained it when we debated this issue previously.

Secondly, the noble Lord asked whether it is the Government’s intention to opt in to the proceeds of crime directive post adoption. We did not opt in to this measure as we had concerns that the directive would interfere with the workings of the Proceeds of Crime Act 2002, thus reducing our ability at home to tackle serious and organised crime. As noble Lords will know, under the Proceeds of Crime Act it is possible to seize assets illegally obtained where no conviction has been secured. That is not possible under the directive, and we feel that that is a deficiency in its case. This Government would want the UK and other international partners to utilise the most effective legal powers to disrupt individuals who seek to hide the proceeds of crime across borders both in the EU and beyond. We will be considering whether to opt in to the measure now that it has been adopted, including considering the opinion of the EU Committee in this regard.

In relation to readmission agreements, participation in these agreements is considered on a case-by-case basis according to the priority attached to the country concerned in the area of immigration returns and the existing bilateral relationship with that country. Should the UK choose not to participate in an agreement and circumstances change, the UK can seek to participate in it post adoption. With respect to Turkey, the UK opted in to the conclusion of the readmission agreement between the EU and Turkey in June 2012. I understand that Turkey is currently passing the agreement through its Parliament and we expect the Turkish authorities formally to adopt it this year.

The noble Lord also raised concerns in relation to the Kosovo association agreement and the European police college proposal. The unfortunate instance of missing the opt-in deadline occurred in the case of the Kosovo framework agreement on Union programmes, not the stabilisation and association agreement with Kosovo. The regrettable combination of circumstances that lead to this oversight has been addressed, but lessons have been learnt for subsequent framework agreements of a similar nature and the opt-in has and will be asserted in those cases.

In relation to the CEPOL proposal, the Government informed the presidency of our opt-in decision on the deadline itself, which was 13 March. Paragraph 10 of the Code of Practice on Scrutiny of opt-in and Schengen opt-out Decisions commits the Government to notifying the parliamentary scrutiny committees of an opt-in decision as soon as we have informed the presidency, but not to doing so earlier. Although I believe that we have therefore complied with our notification commitments, I wish to emphasise that we would usually seek to provide the committees with an indication of our opt-in position and regret that the internal processes did not allow that to happen on this occasion. I should like also to reiterate at this stage the Government’s commitment to ensuring that the EU Committee in this place has the appropriate time to provide an opinion on the UK’s opt-in decisions. The noble Lord, Lord Judd, is right. I recognise that the Government do not always meet this commitment and I think noble Lords will know that it is my intention for us to achieve a better performance in this area. As my noble friend Lord Boswell observed, it is not always easy to spot justice and home affairs content, particularly when the general focus of a measure is not JHA-related. However, we are raising awareness across government at official level. There have been senior-level discussions, new guidance is being circulated and we will be rolling out more bespoke training in the next few months. We hope that this will improve areas where this circumstance has arisen in the past.

I now return to the matter of the UK’s opt-out of pre-Lisbon police and criminal justice measures. First, I join my noble friend Lord Faulks in thanking the noble Lords, Lord Boswell and Lord Hannay, and the noble Baroness, Lady Corston, for their chairmanship of the EU Select Committee and the two sub-committees they represent here today. The committee’s two reports represent an extremely thorough analysis of complex issues and the Government are greatly appreciative of its efforts. I thank all committee members for their work in that respect.

Scrutiny can be an iterative and long-running process. The Government have already taken a number of steps to ensure that Parliament’s views on this matter are heard and understood. However, before I turn to the points on the 2014 measures raised during the debate, I would like to reiterate the Government’s commitment to continuing parliamentary scrutiny of this matter. As my noble friend Lady Hamwee said, we will hold another vote later in the year on the final package of measures that we will apply to rejoin. We will publish impact assessments on each of these measures in good time for that vote. For noble Lords who have expressed concerns about the quality of the impact assessments and Explanatory Memoranda, they are objective judgments and are drawn up in line with government guidelines on those matters. I am very happy to commit myself to replying to that debate when it happens later in the year.

I will respond to some of the points that the noble Lord, Lord Hannay, made in his excellent speech. He set out a number of important points that have helped guide this debate and I am happy to respond to each one. The noble Lord asked about timings on this matter. We are aiming to reach an in-principle deal with the Commission and other member states as soon as possible. Other states support this aim; they are with us on this strategy and are keen to resolve the issue in a timely and orderly fashion.

The noble Lord, Lord Boswell, and the noble Baroness, Lady Corston, both asked about my assessment of progress. My noble friend Lord Faulks and I will update the House and its committees when we can. I am by nature an optimist—as I think most noble Lords will know—and the House might therefore expect me to say that we are satisfied with the general progress of the negotiations. I am happy to reiterate the Government’s commitment to hold a second vote before seeking to rejoin measures. We certainly hope to hold the vote ahead of the House rising for the Summer Recess, but we are not in a position to confirm that. However, I can confirm that we will hold the vote well ahead of 1 December.

The noble Lord, Lord Hannay, asked about the timescales for providing impact assessments on the measures that we are seeking to rejoin and those that we are not. I think we know that there is a difference of view in this area because the Government remain committed to providing an impact assessment on the final package of measures that we are seeking to rejoin, and this will be provided in good time ahead of the second vote.

I thank the noble Lord, Lord Hannay, for his patience in waiting for this matter to be answered, but the Government do not intend to provide impact assessments on the measures they are not seeking to rejoin. This is because the starting point for any analysis is that the opt-out has been exercised, and not seeking to rejoin a measure will not have a direct impact on the UK. I expect that the noble Lord, Lord Pearson, will actually agree with me on that point. Noble Lords will be aware that the original decision was accompanied by a White Paper covering all the issues that were raised by the opt-out.

[Lord Hannay of Chiswick]

The legislative history of this matter is very tangled. Perhaps the noble Lord will reflect on the following. When his colleague, James Brokenshire, gave evidence, I think at the end of 2012, he committed to producing an impact assessment. That commitment was not limited to the measures that the Government were going to rejoin, for a very simple reason: Parliament had not at that stage endorsed the decision to opt out at all. The commitment that was given in 2012 by James Brokenshire was to provide an impact assessment for all 133 pre-Lisbon measures. That commitment has not been fulfilled.

That is water under the bridge. The decision has been taken to trigger the block opt-out, but I think that legislative history demonstrates why the noble Lord, Lord Boswell, the noble Baroness, Lady Corston, and I, and many others, are saying that there must be a set of impact assessments on both the measures we are going to rejoin and those we are not going to rejoin. That was the commitment given by the Minister. If one stops to think about it, I am afraid the argument that the noble Lord has just advanced—that somehow or other something we are not going to rejoin cannot have an impact here—is pretty bizarre. Of course it has an impact: it has an impact on us that we are not rejoining.

That impact could be neutral, positive or negative, but it is an impact. I am sure that hard-working Home Office and Ministry of Justice officials are reluctant to add some 85 measures on which they have to produce impact assessments, but that is not a good enough reason. I hope that the noble Lord will perhaps not give a final reaction to that now but will reflect further on the desirability, if the proceedings are to be brought to a successful conclusion—as I personally and many others hope they will be—that before we do that we have impact assessments that cover the whole waterfront.

[Lord Taylor of Holbeach]

The noble Lord has made a strong point, as he always does, but I have given the answer of where we are on that issue and I do not intend to go into it in any more detail now.

The noble Lord asked about contingency arrangements. That issue is important because our aim is to conduct the negotiations as soon as possible to ensure that there is political and legal certainty for all involved. It is not the intention to have an operational gap between the date on which the opt-out will take effect and the point at which the UK rejoins measures. We place great importance on this issue and believe that it is in everybody’s interest to eliminate any risk of an operational gap. It is clear from the negotiations that member states and the Commission are also keen to avoid such a gap—and I say to the noble Lord, Lord Kennedy, that this includes the operation of the European arrest warrant. It is in everybody’s interests to make this work, and I think that the whole House would agree with that.

The noble Lord, Lord Kennedy, asked about prisoner transfers. We are seeing more returns under this measure; the numbers remain relatively low, however. On returns of foreign national offenders from outside the EU, the UK has reached voluntary prisoner transfer agreements with more than 100 countries outside Europe.

The noble Baroness, Lady Corston, asked about the delay in responding to her letter asking about the right of access to a lawyer directive, which is the MoJ’s responsibility. We are still considering whether to opt in post adoption and have nothing more substantive to say on that at the moment. The noble Baroness asked about Eurojust opt-in negotiations. She will know that negotiations on this proposal are ongoing. The major issues for member states are those that I have just noted.

She asked also about the marginalisation of the UK in Europe due to opt-in/opt-out. That is not our experience. Member states welcome the UK’s involvement in the JHA measures, especially in areas where we are seen to have specific expertise—as we often have in JHA matters. The UK continues to exert influence over negotiations and maintains a seat at the negotiating table even when we are not opting in.

In concluding today’s debate, I thank all those who have spoken; it has been very worth while. I echo the words of my noble friend Lord Judd in paying a compliment to the noble Lord, Lord Hannay.

Immigration Bill

Lord Hannay of Chiswick Excerpts

Thursday 3rd April 2014 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

23: Before Clause 19, insert the following new Clause—
“Exemption to charges under Part 3
No restrictions on access to tenancies or charges for services under this Part shall apply to persons—(a) holding Tier 4 (General) visas sponsored by a recognised higher education institution, or(b) holding Tier 2 visas and registered in full-time undergraduate or postgraduate study at a recognised higher education institution.”

[Lord Hannay of Chiswick (CB)]

My Lords, this is the fourth occasion in recent weeks that the House has debated the cumulative negative impact that the Government’s immigration policy is already having, and is set in future to have, on the higher education sector, one of Britain’s most buoyant and valuable assets. Amendment 23 is designed to avoid that negative impact.

First, I will say a word or two about detail. I and my co-sponsors have not moved, as we did at the Committee stage, to exempt undergraduates and postgraduates from the streamlined appeals procedure. We listened to the arguments advanced by the noble and learned Lord, Lord Wallace of Tankerness, in Committee and concluded that the arguments for and against the new procedures were sufficiently well balanced, so far as students were concerned, to justify reluctant acceptance. We have also removed from the scope of the carve-out proposed in our current amendment the issues of bank accounts and driving licences to meet the points raised in Committee by the noble Lord, Lord Taylor of Holbeach.

I shall say a word now—I hope a final word—about the ways statistics on migrants are compiled in this country and then submitted to the UN, an issue highlighted again this week by the publication of the extremely worrying figures from the Higher Education Funding Council for England which demonstrated, yet again, that the optimism expressed by the Minister in previous debates was a bit wide of the mark. As the noble Lord said in his very welcome letter of 24 February, these statistics are already, since last year, disaggregated so that students can be distinguished from other migrants, even though the net migration figures are re-aggregated for the purposes of submission to the UN. However, we are not talking about the way in which the Office for National Statistics compiles statistics. We are talking about the public policy implications in our immigration policy for this category, which is already recognised, as I have said, as being distinct. On that, we are proposing an approach which has been vigorously promoted for several years by six Select Committees of both Houses.

I very much welcome what the report of the noble Lord, Lord Howell Guildford, on UK soft power had to say, which was identical to what was said by the other five committees which had already reported. This view has been supported by members of all three main parties and of none: quite simply, that we should remove full-time undergraduate and postgraduate students from the public policy impact of the UK’s immigration policy. That is what our main competitors—the US, Canada and Australia—are already doing. Doing that in the context of the Bill, as my noble and learned friend Lord Woolf made clear in the Committee stage debate, would send the most powerful message possible around the world that we want our higher education sector to be open to all who are qualified to benefit from it, without any new obstacles or disincentives being put in their way.

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I conclude by saying that of course we should attract international students to study here, but we need to do that with realistic aims in mind.

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for giving way, but I wonder whether he does not find it a trifle ironical that he is speaking from the Benches of a Government who have exhorted the country, correctly in my view, to succeed in what is called the global race, and above all to maximise the industries and services that we produce best. He has developed an extremely elaborate argument for saying that we must embrace declinism in the higher education sector and we must accept that it is not in our interest to go on growing this potentially extremely valuable resource. Is it not a bit contrary to government policy that one industry in this country should be treated as something that can be tripped up and hampered at every stage while all the others are being encouraged to develop?

[Lord Hodgson of Astley Abbotts]

I obviously have not made myself clear. I hope that I have made it clear that I am not attacking foreign students because I think that they have an important role to play. I said that, first, the Government’s proposals are not the key determinant of why people come to study here. The key determinant is the overall cost and, in particular, the cost in the currency of the country of origin of the student in question. Secondly, I question—I do not know—that the long-term economic benefits which have been adduced to having students here are not as great as they might be.

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[Lord Taylor of Holbeach]

Indeed. My noble friend and I have discussed this in meetings. I take the point. It was made by the noble Lord, Lord Hannay, as well. I think he and other noble Lords understood that there will be secondary legislation that will define these issues. I am aware of the concerns expressed by noble Lords in this respect. My noble friend Lady Hamwee made the same point about the length of time that some individuals may pay the surcharge. I do not consider this a serious problem but I commit to considering it carefully before bringing forward the affirmative resolution order.

A number of other mattes were raised. My noble friend Lady Williams of Crosby asked about changes to work-study visas. We do not have any figures on this but she is quite right to point out that we have tried to facilitate this, just as through the graduate scheme we have tried to facilitate higher education and have worked with institutions.

She asked about slowness in the visa system. In fact, 93% of administrative reviews for overseas students—these applications are made overseas—are made within 28 days, so it is quite speedy. That is one reason we are looking to use the method of administrative review more generally in this respect.

I hope that I have satisfied the noble Baroness, Lady Warwick of Undercliffe, about the breadth of the accommodation amendment. Any undergraduate who chooses to use that facility by gaining a nomination from the university will get the accommodation that they need, and it is quite proper to take up a place in advance.

I was asked by a number of noble Lords about our general approach to working with universities. We have been working at ways to promote this country to students from overseas. It is something in which I believe, and I hope that I have been able to reassure noble Lords that with the considerable sums now being put to one side through the Budget to promote our education facilities to overseas students we have a good offer in place.

The noble Lord, Lord Sutherland, was very keen that the Government should demonstrate unity of purpose on this issue. I hope I have said nothing that discourages him from believing that we have a unity of purpose on this issue. I very much appreciate the work that the noble Earl, Lord Sandwich, does, in particular with the college in south London. He and I have had meetings on it. I know he had a meeting with officials last week, trying to reconcile them to the arrangements. This is not an easy area but we want to work with this sector.

I did not have the benefit of a university education. I went to work at 17 and it has taught me that there are huge benefits in university education. I believe in it passionately. I do not want to see other people denied the opportunities that our university sector provides. I hope that I have demonstrated my wish to engage with the sector and give it confidence that there should be no reason why a properly constructed immigration policy would be incompatible with our policy objective of encouraging the brightest and the best to come and study at our excellent universities. I hope, in the light of these points, that the noble Lord, Lord Hannay, will withdraw his amendment.

[Lord Hannay of Chiswick]

My Lords, I thank all noble Lords who in Committee and on Report supported the amendments put down in my name and those of the noble Baronesses, Lady Williams and Lady Warwick, and the noble Lord, Lord Tugendhat, whose absence today is entirely due to being in Athens on the business of the House.

I have drawn enormous comfort and support from the way in which each of the debates we have held has been lengthy, thoughtful and devoted entirely to the matter in hand. I contrast that with the fact that the other place, when it took this legislation, never actually got around to talking about students or higher education at all because they were so busy chasing Romanians and Bulgarians around the Chamber. That is perhaps a tribute to the way in which your Lordships’ House conducts its business. We do not miss out really important issues like that of students.

I have a brief comment—or perhaps two—on the contribution of the noble Lord, Lord Hodgson. He raised the question of whether universities were aware and made enough of the fact that foreign students help them subsidise domestic students. All I can tell him is that if he talks to anyone in the higher education sector, of course they all know that perfectly well. They know that a number of courses, particularly STEM courses, would simply not be maintainable without overseas student enrolment. However, the noble Lord will recognise that if we are trying to recruit overseas students, this is not a major sales point. It is not terribly wise to go around the world saying, “You may think your fees are a bit on the high side—but don’t worry, they are going to support British students”. I hope he will understand that one has to treat that with a certain amount of care.

Of course, the noble Lord is right about the exchange rate having extreme importance. I can only offer him the advice that Miss Prism offers Cecily in “The Importance of Being Earnest”:

“The chapter on the Fall of the Rupee you may omit. It is somewhat too sensational”.

[Lord Hodgson of Astley Abbotts]

I understand exactly what the noble Lord says, and I understand about the sales pitch. I assure the noble Lord, Lord Stevenson, that I am not going to make another Second Reading speech, but we in this House have got ourselves into a position where we are talking about what the Government are saying about visas and about “curbs”: that was the word used. In fact, what it comes down to when you read the detail is that the checks and balances that the Government are proposing to ensure that there is some recovery of costs are not the key issue. The key issue is the overall cost of the education, particularly in the currency of the country from which the student comes.

[Lord Hannay of Chiswick]

Well, I think Miss Prism probably had it about right.

Having considered the possibilities, I was struck by the fact that all three Front Benches are opposed to the amendment. The Official Opposition’s description of the reasons for which they were opposed to it holds about as much water as a colander; but let us leave that to one side.

I thank the Minister for his extremely considerate response, for the work he has done in the past few weeks, particularly on the issue of student accommodation, to try to meet some of the concerns that have been expressed, and for the very clear way in which he has replied to questions I and the noble Baronesses, Lady Warwick, Lady Williams and Lady Hamwee, raised in today’s debate. I found some that of the things that he said really helpful. They are on the record and that is very valuable indeed.

Before closing, I will make one point that is outside the scope of this debate. Within the next year, all three main parties are going to write their manifestos for the next election. It would not surprise anyone, I imagine, that there will be a substantial section on immigration in every one of those manifestos, because it is a burning issue of the hour. I make a plea that when they write these manifesto chapters on immigration, they make it quite clear that in the next Parliament they will not treat overseas students as normal economic migrants in terms of the Government’s immigration policy: that they will reflect and that they will respect the specificity of the higher education sector. Frankly, I do not think that they will lose a single vote if they say that, but they will save themselves an awful lot of trouble in the next Parliament. I hope that that plea will be heard and, in any case, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Immigration Bill

Lord Hannay of Chiswick Excerpts

Monday 10th March 2014 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

49: Before Clause 15, insert the following new Clause—
“Exemptions to Part 3
No restrictions on access to tenancies, bank accounts, driving licences or other services, or charges for services, under this Part shall apply to persons—(a) holding Tier 4 (General) visas sponsored by a recognised higher education institution, or(b) holding Tier 2 visa and registered in full time undergraduate or postgraduate study at a recognised higher education institution.”

[Lord Hannay of Chiswick (CB)]

My Lords, last week we had a useful debate about the negative impact of some aspects of the present Bill on overseas students, both undergraduates and postgraduates, wishing to come to this country. That debate took place on Amendment 26; today we are discussing Amendment 49.

Ministers can be in no doubt already of the depth of concern felt in all corners of the House about the damage being done by the cumulative effect of the Government’s immigration policy to what is, by common agreement, one of Britain’s most buoyant and valuable invisible exports, and of the strong desire that Ministers should think again before imposing any further charges or burdens on overseas students.

Last week we discussed the new appeals procedure; today we are considering what I would describe as the two most worrying aspects of the Bill so far as overseas students are concerned—the NHS charge and the provisions on accommodation. It is the aim of Amendment 49 to remove the threat to this very important part of our economy by, as it were, carving out full-time students from the application of those provisions.

I shall try not to weary the Committee with too much repetition of the general points and facts about the contribution of the higher education sector to our economy and the reasons for believing that it is already being harmed by the cumulative effect of the Government’s immigration policy, about which I have spoken—and that, I add, before any impact from the measures in the present Bill has taken effect.

I hope that the Minister can respond to this: what other British economic sector, bringing in more than £10 billion net a year and rising, is being put at risk by the Government’s own policies? Is there any other industry that we do that to? The latest statistics from the Higher Education Statistics Agency show that we are losing market share to our main competitors—to the US, Australia, Canada and, perhaps not too far in the future, to France and Germany, where more and more courses are being offered in English.

Let me cite one or two of the findings from a National Union of Students survey carried out in January this year on a sample of 3,000 overseas students already in this country; that is to say, people who will not be directly affected by the measures we are discussing today. Some 74% of them said that the proposed NHS charge would have made it more difficult or impossible for them to study in the UK, while 82% of those with dependants, who are mainly postgraduates paying much higher fees, of course, said that free access to the National Health Service was important to their choice to study here. Some 40% said that the introduction of landlord checks would have negatively impacted on their decision to study in the UK, and that figure rises to 51% in the case of PhD students. Those are pretty sobering findings.

When it is suggested that overseas students should surely in equity make some contribution to any welfare costs, it seems to be completely overlooked that such research as there is shows that the costs incurred are substantively outstripped by the benefits that these students bring to our economy. Unlike what I will call genuine economic migrants—people who come here looking for work—these people bring with them over £20,000 a year in cash which goes into our economy. They are creating employment both at our universities and in the towns and cities that host those universities, as research by the University of Sheffield shows. They often enable our universities to maintain a wider range of important subjects, such as engineering, science and mathematics, than would otherwise be the case. I do not imagine that anyone supposes that taxpayers’ money is going to be available to fill any gaps that might be caused by a shortfall in the number of overseas students who would otherwise be attracted by the excellence of our academic establishments.

I hope that I and others who are to speak to this amendment will have demonstrated why removing full-time undergraduate and postgraduate students from the scope of these measures, as Amendment 49 proposes, is not just a piece of special pleading but justified as a rational analysis of our national interest. I beg to move.

[Baroness Williams of Crosby (LD)]

My Lords, my name is attached, along with others, to the amendment moved by the noble Lord, Lord Hannay. I will speak briefly to make one or two points that perhaps are not so widely part of this debate, because, as I have rung up acquaintances of mine in universities—I know quite a few, having been an Education Minister—I have become more aware of the depth of the challenge to our university and higher education system and, at one remove, of the depth of the challenge to the front wave of our economy in terms of its dependence on innovation and invention. I will not detain the Committee for long, but I believe that what I am saying, although supplementary to what has already been said by the noble Lord, Lord Hannay, deserves a great deal of thought.

Let me begin by saying that what has attracted students from overseas to this country has been not only the English language and the excellence of our universities, but also a deep sense of our being an old and stable democracy. People have a sense of freedom of expression in this country, along with freedom of intellectual discussion and debate. There is no doubt that, rather surprisingly, in the fields of science and technological research, this country has continued to be a magnet for students from all over the world in a way that one would not really expect for a country of our size and one that is not in the very first rank of economies, like the United States at the present time. It is very important that the context of what attracts overseas students to this country is something that we maintain. In particular it means our marked ability to tolerate different points of view, and to tolerate people of different races, nationalities and languages. That has been a hallmark of studying in this country.

Anyone who reads the history of the United Kingdom will be more than aware that on three occasions we have benefited vastly from immigration. The first occasion was the immigration of German Jews in the 1930s, who brought with them an extraordinary level of understanding and knowledge of medicine and science, including a number of very distinguished Nobel laureates. The second great wave was immigration from the Caribbean in the 1960s without which, quite frankly, we would not have a working National Health Service today because of the huge contribution they have made to staffing that public service. The third wave, more recently, was of immigrants from Asia and east African refugees who came here in the 1970s and gave a tremendous boost to our commerce, business and research.

However, it is not the case that the concerns being expressed here are those only of overseas students, although I echo completely what the noble Lord, Lord Hannay, said about the very disturbing information from the National Union of Students. He mentioned the fact that more than 50% of undergraduate students said that they would think hard before coming to us again. Perhaps even more significant and important is that no fewer than 66% of postgraduate students—half of our overseas students are postgraduates—said exactly the same thing. In light of the changes being made—the increase in visa fees, the health surcharge and all the rest of it, these students would think hard before coming here again. Let me say in passing that we do not seem to recognise our extraordinary dependence on these postgraduate students. I can give an example. Time after time we have recruited doctors from the Indian subcontinent to sustain our health service. A great bulk of them have been postgraduate students who came from India to study in the United Kingdom and then went on to work as postgraduates, and in some cases decided to become citizens of this country and continue to sustain the NHS.

I would add to that that there are people of great significance and wisdom who would associate themselves powerfully with the view that the discouragement of overseas students has a devastating effect on our economy, in particular the science and engineering sectors. I shall quote two of them. The first example is a quotation from the CBI which has said in a public statement:

“Despite the government’s assurances to the contrary, many businesses fear that complex recent work permit and visa reforms have created a perception that Britain isn’t open for business”.

That is often treated as something that is said by those who come from outside this country, but no, it is something that has been said officially by the CBI, the leading organisation representing industry in the UK. The second example comes from the president of the Royal Society, Sir Paul Nurse, who is a very great scientist indeed. Time and again he has pleaded with Governments to give a more generous reception to overseas students. I shall quote his words:

“The rhetoric from the Home Office, combined with the complexity involved with immigration rules and visas, has led to a perception internationally that the UK is not particularly welcoming”.

I have given these examples because no one can pretend that these are partisan statements made for political ends. They are statements by distinguished people who believe that what they are saying should be a warning for the rest of us.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

That is certainly true but of course the charge is lower than the charge for other people, so that is going to be recognised in the proposal. The amount of the charge, at £150 per year, is significantly less than the average student would cost the health service, and I accept that that is as it should be. I think that the charge is actually lower than for other people. We need to get in perspective just how much the charge is: it is £150. I am not minimising that but, if you look at it spread over a year, and many of the students at a higher level will be here for a full year, you see that it is the cost of a Sunday newspaper each week throughout the year. It is important to keep that in perspective.

I look at the charge in terms of whether it is fair. I know what the noble Baroness, Lady Warwick, suggested, but we have to look at it in the round against the other changes. Compared with the other proposals, is it not fair that students should pay a charge, a levy, as well? I think that it is, against the background of the Bill and indeed of the other people in this country who have contributed.

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for giving way. I was a bit puzzled by his saying that the charge is spread over a year. The whole point about this charge is that it is not spread over a year but is paid up front. Moreover, if you ask for a visa for the whole of your study period, the charge is tripled and up front.

[Lord Bourne of Aberystwyth]

I was specifically addressing the health charge. When I say that it is spread over the year, I mean that the benefits are spread over a whole year, and many students are here for a whole year. I appreciate that it is paid as a lump sum. On the issue of fairness, I think that it is fair, looked at across the broad sweep of the changes that are being proposed.

The other issue is whether the charge is competitive. Some noble Lords have cited the position in the United States. As I understand it, they require insurance, and the cost of that is at a much higher level. The USA is the chief market for students; more students go there, as has rightly been said, than elsewhere. I am not suggesting that we slavishly follow the USA, but, if we are going to make the point about competition, we have to look at other states and how they handle this issue. Many of them have a charge or require insurance. We have to look at it globally in that way.

--- Later in debate ---

[Lord Taylor of Holbeach]

I think that the noble and learned Lord will understand that I suggest both. The graduate course has been a success—we are increasing the numbers of students who are staying on for postgraduate work—and the business entrepreneur course is equally successful. There will be some, but there is unfortunately still some evidence that the tier 4 student migration group—it is a special route; it is not the same as everything else; students are treated as a special case—is being misused in some cases. That is why it is important that we have checks in place to make sure that that does not occur.

My noble friend Lady Williams suggested that the exceptional talent route has dismally failed. We do not accept that. We recognise that the number of visas that are taken up under that is low, but it was always thought that that would be the case. However, we are working with all the competent bodies—the Royal Society, the Royal Academy of Engineering, the British Academy and the Arts Council—to improve the process so that the visa process payment will not be paid until the competent body has endorsed the application. We are working with these bodies to ensure that the scheme is a success.

In answer to my noble friend Lady Benjamin, it is not the case that international students are unable to stay on and work. The post-study work route, which was much abused, which allowed all students to stay on and look for work, has been replaced by the graduate level job scheme, and we have made a success of that.

The noble Lord, Lord Stevenson, asked whether the cost of the surcharge in relation to the cost of studying was competitive with other countries. Yes, it was addressed in our published impact assessment, where the noble Lord will find the answers to a number of the questions he asked. However, I will make a point of writing to him with a full answer to all the various questions, some of which lie outside the Home Office’s own immediate area of engagement.

I understand that people want to make sure that the Government do not do anything that damages the reputation of this country as a centre of intellectual and academic excellence. I accept that. Speaking as a member of the Government, I remind noble Lords that we have a responsibility to seek to control immigration. All the measures in the Bill are about methods of making sure that people who are in this country are here legally.

There is no difference between us on the benefits that overseas students bring to this country. That is why there is no limit on numbers, and why I will continue to seek to reassure noble Lords on the Bill. I hope that we will have a chance to discuss it before we come back to this issue on Report. Meanwhile, I hope that the noble Lord, Lord Hannay, will withdraw his amendment.

[Lord Hannay of Chiswick]

My Lords, I thank all noble Lords who participated in a very impressive debate. I thank in particular my three co-sponsors of this amendment, the noble Baronesses, Lady Williams and Lady Warwick, and the noble Lord, Lord Tugendhat, who so eloquently set out the case which I tried to introduce. There were many other remarkable contributions to this debate, so I will not try to pick out any others.

In a previous debate on this subject—we are getting quite used to having debates on this particular subject—I likened the Minister to St Sebastian, filled with arrows but still smiling. The best pictures of St Sebastian always show him smiling despite the number of arrows that have gone through him. The Minister always handles this with great good temper. I was very pleased on this occasion that he had one supporter, as that removed the sense that we were indulging in an unfair debate.

I hope that we can stop having a war of statistics. The Minister came back again to the point about the UN figures. No one is contesting that the Government will continue to submit to the UN figures in the way that the UN has asked for—that is to say, all people who stay for a year or more. But there is not the slightest difficulty about disaggregating those figures and putting them together again before sending them into the UN. If the Government wanted to, they could leave students out of this Bill completely but, at the same time, continue to make the same returns. I hope that we do not have to come back to that. I think that the war on statistics has gone about as far as it can go. Frankly, citing several times the enormous enthusiasm for Indian students to come to this country sits a little oddly alongside a 49% drop in the past two years. If that is enthusiasm, I do not think we can afford many more victories like that.

Immigration Bill

Lord Hannay of Chiswick Excerpts

Monday 3rd March 2014 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

26: Clause 11, page 8, line 30, at end insert—
“(d) P is registered in full time undergraduate or postgraduate study at a recognised higher education institution”

[Lord Hannay of Chiswick (CB)]

My Lords, Amendment 26 covers ground similar to that covered by an amendment much later in the proceedings, Amendment 49, which we will not be dealing with tonight. Amendment 26 is about appeals and seeks to remove from the scope of the Bill appeals by undergraduate or postgraduate students in full-time study at a recognised higher education institution.

Why am I moving this amendment? There is much common ground with the Government about the important role that the higher education sector plays in our economy and, above all, that our universities play in our economy. It is a massive benefit to this country. It accounted for £10.1 billion of invisible exports at the last time of asking, and that figure is rising and should continue to rise. It is also common ground with the Government and with those in the university sector—I declare an interest as I sit on the council of the University of Kent—that we want to see those student numbers increasing. Last July, the Government published a strategy for international students, and in it they foresaw a steady increase in the years ahead. They hoped for some 15% in the next few years.

There is also the less tangible aspect of the benefits to this country from postgraduate and undergraduate students, which is called “soft power”. When they have qualified, these students very frequently go back to their countries and retain very strong links with this country, often doing much business with our exporters, and are thus generally very positive. That is the good news.

The bad news is that the Government’s immigration policy is cumulatively hamstringing this vital invisible export industry. That is before the measures in the Bill, several of which are likely to be quite damaging, have taken effect. This cumulative effect is now under way, and if you ask me whether these concerns are well founded, the most recent figures produced by the Higher Education Statistics Agency in January 2014, which cover the last academic year for which there are figures—2012-13—are disturbing indeed. Those figures are before the cumulative effect that would come from this Bill because, of course, it is not yet in force.

I shall not go into too much detail on the figures, because there was a good deal of coverage of them at Second Reading, but some really stand out. The main one is that in the year 2012-13 overall numbers dropped for the first time since figures were produced in the early 1990s. They dropped by 1%. More seriously, perhaps, the figures for postgraduates—and postgraduates from countries outside the EU are extremely important for the future of our universities—dropped by 4%. Some of the figures for the countries of origin of large numbers of students coming to this country are really terrifying. The figure for India dropped by 49% in two years, and there are very substantial drops in the figures for those from Pakistan and other countries of the Indian subcontinent, Nigeria and so on. That is in a period when the figures for our main competitors—the United States and Australia—were going up, by 7% for the United States and 6.9% for Australia. The market is growing, we are losing market share, and that is not good news for this country.

In addition, I suggest that Ministers look at a recent study conducted by the National Union of Students, which it made available to those of us who are interested in this matter, and which was based on 3,000 students from outside the EU currently studying in this country. They were asked in January of this year about their reaction to certain matters. That, too, was not very comforting. The chilling effect that the Government’s immigration policies are having and are likely to have was very clear: 51% of those non-EU students found the UK Government’s attitude towards them “unwelcoming”. Has the Minister studied this survey by the National Union of Students? These people have no particular interest in the matter, because they are here already. However, they said in much larger numbers than that 51% that if they had been asked to undertake some of the burdens in the Bill, they probably would not have come; they would have gone somewhere else.

The question is: why not carve students out of the Bill? There is no requirement for the Government to include students in the Bill for public policy purposes. I accept that the Government have to make a return on economic migration to the UN, which has to include students as well as those who are more properly regarded as economic migrants. However, there is no need whatever for the Government to apply their immigration policy, these new measures, to students because they are economic migrants; of course, they are really not. These people bring to this country very large resources, to which I have already referred: £10.1 billion net in the course of the most recent year. They bring jobs to this country because they are creating employment in our universities. The study by the University of Sheffield, of which I am sure Ministers are well aware, shows just how much of a contribution they make to the economies of many of our university cities and towns.

Why are the Government not therefore prepared to listen to the views of four or five—I cannot remember the exact number now; it goes up all the time—Select Committees which have all said, “Please do not treat students, for public policy purposes, as economic migrants, because you are damaging a resource vital to this country”? I hope that the Government will reflect further on this and will see the advantages to them and to the whole country of simply removing them from the Bill. I hope we will then all be able to work together, which is what universities want to do. Those of us who work for universities want to see a buoyant, increasing number of students, undergraduates and postgraduates in full-time education, coming to this country and bringing huge benefits to us.

[Baroness Lister of Burtersett]

My Lords, as a member of the Joint Committee on Human Rights, I speak in particular to Amendment 27. At Second Reading, the Minister included in his list of myths surrounding the Bill that it undermines access to justice. The Joint Committee therefore looked again at this question. As the Minister may be aware, we published a second scrutiny report today. We write:

“We have considered carefully the Government’s argument that the right of effective access to a court or tribunal in immigration and asylum cases will be preserved by a combination of the continued availability of full appeals in cases concerning fundamental rights, the new system of administrative review, and the availability of judicial review, and its argument that the practical effectiveness of judicial review will not be affected by the proposed reforms to legal aid and judicial review itself. We do not share the Government’s confidence”.

We go on to say:

“We have already reported our concerns about the implications of the proposed residence test on effective access to justice. We have also inquired into the Government’s proposed reforms to judicial review and we will be reporting our conclusions in due course. For present purposes it is sufficient to say that, while we accept that it is a perfectly legitimate objective for the Government to seek to reduce the risk of unmeritorious claims being brought, we do have serious concerns about the effect of some of the Government’s proposed judicial review reforms on the practical ability to bring meritorious challenges to decisions, including in the immigration and asylum context … We also draw to Parliament’s attention the paradoxical fact that after years of seeking to reduce the number of immigration and asylum judicial review cases that have been causing backlogs in the High Court, including by transferring such cases from the High Court’s jurisdiction to the Upper Tribunal, the Government is now seeking to justify a significant reduction in appeal rights by reference to the continued availability of judicial review … In light of our concerns, we recommend that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently to remove the risk that meritorious appeals will be prevented from being brought”.

In other words, we express the spirit of Amendment 27.

Going beyond that, and speaking in a personal capacity, I also support my noble friends in their opposition to the question that Clause 11 should stand part of the Bill.

--- Later in debate ---

[Lord Wallace of Tankerness]

The noble Lord is suggesting that these figures are anecdotal, but in respect of the countries I have just mentioned—the United States, Australia and the United Kingdom—they are genuine figures, as far as I am aware. There is no way that they are anecdotal. Those for the United Kingdom were produced by the Office for National Statistics.

[Lord Hannay of Chiswick]

I honestly think that we had better call the day on this selective quotation of statistics. Why cannot we all just use the Higher Education Statistics Agency’s figures for the most recent year? Just picking figures out or suggesting that two or three years before that there had been an enormous increase and so on will get nowhere. This is not a statistical matter. This is about a growing market in which we are losing market share.

[Lord Wallace of Tankerness]

I did not seek to dismiss this as a statistical matter. I sought to put it into some kind of context: that over the period we have been talking about the drop was less than 3,000, and other countries saw a drop as well. The important point, which I will repeat, is that this country welcomes the brightest and best and there is no limit on the number of overseas students who can come to study here.

My noble friend asked whether students who receive visas go on to use them. All genuine students who qualify will be issued with a visa for the United Kingdom but of course they may ultimately decide to study elsewhere. I know that it may be of interest to my noble friend how many students may go to the trouble of applying for a UK visa and then choose not to travel, but I regret that that information is not available to the Government. I am afraid we cannot meet all her requests but a substantial number of the things that she was seeking in her amendment are already there.

--- Later in debate ---

[Lord Wallace of Tankerness]

My noble friend makes a valid point. We collectively need to think about how to tell a good story better.

The noble and learned Lord, Lord Hope, asked about students staying and working after their studies. While studying, university students can work for up to 20 hours a week in term time and full-time during holidays; they can also undertake work placements. They get four months at the end of their course to gain work experience and after that they can stay if they get a graduate job earning £20,300 or more or are on one of our other postgraduate study work schemes. We have also expanded the post-study work opportunities available. PhD students can stay for a year to gain work experience and those who have a business idea to develop can do so under our graduate enterprise scheme, which I believe is the first of its kind in the world.

In trying to address the issue, the noble Lord, Lord Hannay, has moved an amendment which seeks to add decisions relating to higher education students to the types of decision that can be the subject of an appeal to the tribunal, as set out in Clause 11. The Bill already provides that anyone, including students, can appeal against one of the decisions listed in Clause 11(2): the refusal of a protection claim, the refusal of a human rights claim or the revocation of protection status. The amendment does not change that because it neither adds a new decision type to the list of decisions that attract a right of appeal nor adds to the grounds of appeal that could be raised at appeal. When I was in the other place, I used to cringe a bit when Ministers used to say, “Your amendment is technically deficient” when an important point was being made. Technical flaws aside, we believe the amendment is unnecessary. It is true that a student may no longer appeal against the refusal of an application for further leave to remain in the UK as a student under the Immigration Rules. We are doing that because the appeals system is slow and expensive for those with a genuine concern and presents too many opportunities to frustrate removal for those who seek to break the rules.

The Bill replaces the right of appeal with the administrative review process, which will provide a swifter and cheaper remedy for the majority of those students who would have been successful on appeal. For students who want to move on with their studies, I believe that a quick remedy is better than a drawn out one and that a cheaper remedy is better than a costly one. That relates to the issues which have been raised in this debate in relation to appeals.

Amendment 27 would impose three conditions which must be met before the appeals provisions in Clause 11 come into force. The first is that the Independent Chief Inspector of Borders and Immigration must report on decision-making in entry clearance and managed migration. The second is that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair. The third is that only once those two requirements have been met can an order for commencement of Clause 11 be laid before Parliament and approved by both Houses.

I understand the reservations that have been expressed about decision-making in immigration cases. They were expressed in the report of the Joint Committee on Human Rights and by the noble Baroness today. However, these concerns must be seen from the perspective of the end-to-end immigration system. In 2012, 14,600 managed migration appeals were allowed by the tribunal. The total number of managed migration decisions taken in 2012 was 291,827. Only 5% of those decisions were overturned. Although our internal sampling indicated that 60% of the points-based system appeals that succeed do so because a case-working error has been made, this does not mean that the majority of decisions are affected by error—far from it. The great majority of applications are successful. Of decisions taken in the UK, only 10% were refused in 2012. Fifty-one per cent of those succeeded on appeal, of which 60%, as I referred to earlier, succeeded because an error was made. Looking at decisions as a whole, it is clear that only a small proportion is affected by the changes being made to the appeals system.

The Home Office has taken action to address historic problems with decision quality. I recognise that these concerns have been genuinely aired. It is why the old UK Border Agency was abolished and its functions brought back into the Home Office. That has made a real difference and work is continuing to improve decision quality. The chief inspector himself acknowledged that positive steps have been taken to improve the process by which decision-makers learn from appeals in his November 2012 report on tier 4 student visas, which in turn led to improvements in process and decision quality.

Administrative review will be a central part of the process to improve decision quality, as its function is to identify errors in decision-making. The administrative review process is being developed to incorporate an element of feedback to the original decision-maker. In this way, administrative review will support the ongoing work to improve decision quality. I can also confirm that those who do the review will not be the same as those who undertook the original decision.

The approach adopted overseas for feeding back administrative review outcomes to decision-makers and improving decision quality is recommended as the right approach by the chief inspector in his September 2013 report on tier 1 visas. In-country administrative review is modelled closely on the approach overseas.

Meeting the requirements that the amendments seek to impose before commencing Clause 11 will inevitably cause delay. That will mean that those migrants whose decisions are affected by case-working error will have to continue to challenge decisions by costly and time-consuming appeals rather than being able to take advantage of a swifter and cheaper administrative review process.

Amendment 28 also relates to the commencement of Clause 11. It would require an impact assessment to be laid before Parliament setting out the number of appeals that will be affected by the changes to appeal rights introduced in this Bill and the costs that these changes would cause the First-tier Tribunal to incur. However, as was referred to by the noble Lord, Lord Lea, an impact assessment has already been produced and was published prior to the introduction of the Bill. It contains the information that this amendment seeks to have laid before Parliament. Given the existence of the impact assessment, I hope that the noble Baroness will not press the amendment.

Amendment 29 would require the Secretary of State to produce a review within 12 months of Royal Assent of the numbers of persons deported under Clauses 11 to 14. I rather suspect that the amendment is based on a misapprehension as deportations do not take place under these clauses but rather under Section 5 of the Immigration Act 1971. However, I assume from what was said that the aim is to question what difference the changes in the Bill will make to our ability to deport those whose presence is not conducive to the public good, including foreign national offenders.

The changes made in the Bill are not about large increases in the number of foreign criminals we deport but about the principle that Parliament is rightfully the body to set out the public interest in the importance of seeing foreign criminals deported and that the tribunal is the right body to weigh the strong public interest in deporting foreign criminals against the specific Article 8 rights of the criminal and their family. Success will be seen as these deportation cases progress through the Immigration Tribunal with outcomes that clearly show that the tribunal decision has had particular regard to Parliament’s legitimate view on the public interest. Case law will take some time to develop and settle once these provisions are commenced. It is not sensible to have a set period on the face of legislation for when a report must be presented when we may well at that point have only a very partial picture of the impact of the changes.

The statement of intent published in relation to the Bill also indicated that:

“Within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan”.

It is certainly my understanding that, off his own bat, the chief inspector can also take up any issue at any time. The Government have committed to asking the independent chief inspector to include a review of the administrative review process established under this clause, with that to be done within a year of the process being established. On the basis of these reassurances, particularly with regard to appeals, I hope that the noble Lord will be willing to withdraw his amendment and that noble Lords will agree that Clause 11 should stand part of the Bill.

[Lord Hannay of Chiswick]

My Lords, I will be very brief because the noble Lord, Lord Singh, and others who are involved in the next debate have been sitting with mounting irritation, I seem to think. He has been very patient and I will not say much.

The point I am making here is that the cumulative effect on students and post-graduates is damaging. The evidence is there and we would be foolish to ignore it. I hope that Ministers will, between now and Report, look carefully at the cumulative issue. That is important. The noble and learned Lord, Lord Wallace of Tankerness, suggested that the drafting of my amendment is somewhat short of perfect. I asked someone who shall remain nameless about that earlier today. He said, “Don’t worry, Ministers always say the drafting is imperfect but, if the House’s views are made known to them, somewhere before Third Reading they will get it right. They have lots of lawyers who can get it right”. I do not wish to continue further now other than to say that we will have to come back to this issue both in the debate on Amendment 49 and on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Immigration Bill

Lord Hannay of Chiswick Excerpts

Monday 10th February 2014 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, this Second Reading of the Immigration Bill is not taking place in a climate of public debate which is particularly propitious to the calm and balanced consideration of an extremely sensitive issue. Quite the contrary, there are screaming headlines in the tabloid press, paparazzi turning up at Luton Airport to interview any Romanian or Bulgarian on whom they can lay their hands and the two main parties being tempted into a race to the bottom with UKIP which they cannot hope, and should not want, to win. These are now the drivers of a debate which risks doing this country lasting economic harm and overwhelming our traditional values of tolerance and openness.

Amendments to the Bill were moved in the other place which would, if they had been adopted, have been contrary to our treaty-based international obligations. Fortunately, they were not so adopted, but senior Ministers did not oppose them. I am sure that this House’s consideration of the Bill will not go off down that dangerous road, and I pay tribute to the Minister who started the debate today on a note, which I thought was thoroughly admirable, of calm and cautious reflection. I just wish the substance of what he was introducing was a bit closer in conformity to the tone he used in introducing it.

I hope that in this debate, as we have already heard, people will be prepared to look more objectively and dispassionately at the arguments for, as well as those against, this country remaining reasonably, but not irresponsibly, open to immigration. There is a crying need for more research and an evidence-based approach to this issue, and for it to be looked at in a wider context than just that of our own national prism. About 18 months ago your Lordships’ EU Select Committee published a report on the EU’s general approach to migration and mobility, which highlighted not only the real threat from a rising tide of illegal immigration but also the need—if Europe is to compete effectively in the world of tomorrow—to continue to attract and admit skills from outside to supplement those of our ageing populations.

However, the main thrust of my intervention in this debate is not those broader issues, but rather the negative impact that some of the measures in this Bill could have on our higher education sector and on students coming to this country for full-time undergraduate or postgraduate education. In doing so, I declare an interest as a member of the council of the University of Kent. I begin, however, by giving credit to this Government for having taken action against the abuse of our immigration controls by dodgy language schools. That action was necessary and justified, even if the revelations of tonight’s “Panorama” programme show that there is still some way to go.

Other aspects of the Government’s immigration policy have not, however, been so benign. There is now a real threat from that policy, to what is by any calculation one of our largest and potentially most buoyant export industries: the provision of undergraduate and postgraduate education at our universities. I am sorry to repeat the figures, but I feel, particularly since I did not manage to recognise at all the one figure provided by the Minister when he opened the debate, that they are really alarming. The Higher Education Statistics Authority, whose figures for the academic year 2012-13 came out just last month, showed an overall drop of 0.9%—not huge I agree, but the first drop since the authority began setting figures in 1994—and a drop of 1% in students who were actually starting their education courses in the present year. The drop in postgraduates was 4.5%, and that is extremely important because it is a very profitable part of the universities’ offer. Figures for students coming here from India, as my noble friend Lord Bilimoria pointed out, have dropped by 49% in the last two years; from Pakistan by 21%; and from other non-EU countries by smaller, but still significant, figures.

This is all taking place at a time when our main international competitors are expanding their position in what is a rapidly growing market. The US figures for the same period are up 7.2%; the figures for Australia are up 6.9%. Those figures, surely, should be a wake-up call to the Government about their policies. Let us not forget that the negative aspects of this Bill have yet to come into play at all. This is what has happened on the basis of existing policies, and now we are piling Pelion upon Ossa. A number of the measures in this Bill are likely to make that trend worse, not better. They include the removal of the appeal rights for students and staff applying for further leave to remain; the introduction of a surcharge for access to NHS services; the requirement on private landlords to check the immigration status of their tenants; and the scope for the Government to further raise fees for visa and immigration services. That is quite a list of disincentives for anyone who is sitting there weighing up the relative merits of this country against others as a possible place to go for their higher education.

All this is completely unnecessary, if only the Government would heed the pleas of no less than four Select Committees of both Houses to stop treating full-time undergraduates and postgraduate students as economic migrants for public policy purposes. This is not a statistical problem. It is not a matter of a statistical quibble. The Minister addressed that aspect in earlier debates that we have had, but that is not the heart of the matter. The Government can, if they really wish, or feel obligated to do so, continue to include students in their submission of statistics to the United Nations or whoever it is they believe they are obligated to produce those statistics for, but they do not need—and that is a matter totally in our own hands—to treat these students as economic migrants for public policy purposes.

It is not even as if bona fide undergraduate and postgraduate students are the focus of the rather febrile public debate that is going on over immigration; they are not. If most people were asked whether such students, who contribute substantial sums to our economy and are actually creating jobs in higher education for our own citizens, are economic migrants, they would rightly be completely baffled. So why has the Government not simply stopped treating them as such?

There are serious questions to be answered here, and I hope that when the Minister comes to reply to the debate, and in Committee and on Report, we can hope for a more considered response from the Government than they have hitherto provided. Why cannot such students simply be excluded from the scope of this Bill? We are talking about a sector of the economy which is responsible for massive invisible exports—£10.2 billion in the year 2011-12, and more by now—and which is currently second in the world league table of a market that is growing rapidly. We do not have that many industries like that, frankly, and certainly not so many that we can lightly afford to further damage their prospects by what I accept are inadvertently and unintendedly conceived government policies.

EU Police and Criminal Justice Measures: EUC Reports

Lord Hannay of Chiswick Excerpts

Thursday 23rd January 2014 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

That this House takes note of the Reports of the European Union Committee on EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report, Session 2012–13, HL Paper 159) and Follow-up report on EU police and criminal justice measures: The UK’s 2014 opt-out decision (5th Report, Session 2013–14, HL Paper 69).

[Lord Hannay of Chiswick (CB)]

My Lords, the debate today is unusual in that we are debating two reports, not one: the report of 23 April 2013, EU Police and Criminal Justice Measures: The UK’s 2014 Opt-Out Decision, and a follow-up to that report of 31 October 2013.

It is unusual, too, that these reports were prepared not by one sub-committee of your Lordships’ EU Select Committee but two: the Sub-Committee on Justice, Institutions and Consumer Protection, chaired until May 2013 by the noble Lord, Lord Bowness, and since then by the noble Baroness, Lady Corston; and the Sub-Committee on Home Affairs, Health and Education, which I have the honour to chair. We took all our evidence and prepared both our reports at joint meetings. These reports were agreed by consensus. They reflect the views of Members drawn from all the main party groups represented in this House and from these Cross Benches. I pay tribute to the leadership of the noble Lord, Lord Bowness, and the noble Baroness, Lady Corston, who shared the chairing of these meetings with me, and to all members of the sub-committees who put in many long hours of work dealing with extremely complex material. I am delighted to see that the noble Lord, Lord Jopling, who was my predecessor in the chair of the sub-committee, will participate in this debate.

The two reports are unusual for a third reason. Reports from your Lordships’ EU Select Committee are often based on legislative proposals or communications from the Commission but in this case we inquired into a decision to be taken by our own Government: whether or not to trigger before 31 May 2014 the block opt-out from the pre-Lisbon justice and home affairs measures, provided for in Protocol 36 of the Lisbon treaty. Article 10 of Protocol 36 to the EU treaties, which was added by the Lisbon treaty, enables the Government to decide whether the UK should continue to be bound by the approximately 130 police and criminal justice measures adopted before the treaty of Lisbon entered into force or exercise their right to opt out of them all. If the Government do not opt out, these measures would become subject to the jurisdiction of the Court of Justice of the European Union and the enforcement powers of the European Commission on 1 December 2014 in relation to the UK, as they will to all other member states. If the opt-out is exercised, all the measures would cease to apply to the UK and it would have to negotiate to seek to rejoin any measures where it wanted to do so.

Some words about process: it has been clear from the start that the 31 May 2014 final deadline for triggering the block opt-out left far too little time before the cut-off date of 1 December 2014, when any opt-out would become effective, to negotiate with the Commission and Council the necessary decisions to permit the UK to rejoin any of the measures it wished to, especially since the upcoming European Parliament elections and changeover in personnel at the top of the European institutions could complicate matters. Therefore, we have no criticism of the Government for moving well ahead of the 31 May 2014 deadline; indeed, we believe they should, if anything, have moved sooner than they did to allow an adequate period for what will necessarily be complex and substantive negotiations. Time alone will show whether we were right to be concerned at the slowness with which the Government reached a view. Nor did we, or any of the many witnesses from whom we took evidence, question the Government’s unfettered right to trigger the opt-out, a right which was accepted by all the other member states when they ratified the Lisbon treaty. However, that, I am afraid, is as far as harmony on process goes.

During the first half of 2012, both Houses were assured by Ministers in the most unambiguous and unequivocal terms that before any decision was taken on triggering the opt-out, there would be extensive consultations with the relevant committees in both Houses, yet the Prime Minister announced the decision in—of all places—Rio de Janeiro, rather than in Parliament, on 28 September 2012, at a time when, seemingly, no consultation had taken place at all. There had been no consultation with the committees of either House; no consultation with the Ministers of devolved Administrations, two of which—those in Edinburgh and Belfast—are responsible for separate, independent legal jurisdictions; and no consultation with the law enforcement agencies and the professional bodies which would be directly affected by any opt-out.

Nor did matters much improve after the Home Secretary finally informed Parliament of the Government’s “current thinking” by a letter and Statement in October 2012. Explanatory Memorandums were promised in November 2012 but did not finally appear until June 2013. An impact assessment somehow went missing in action and has still not been provided. No indication was given by the time of our first report in April 2013 as to which measures the Government would seek to rejoin if they triggered the block opt-out, and when that information was provided and the list of 35 measures was revealed in July 2013, Parliament was given a few days only before being asked to approve the triggering of the opt-out. The Government response to our April 2013 report arrived a month beyond the two-month deadline for such a response and actually on the day this House was being asked to vote on the opt-out. It is, I fear, a sorry saga of disrespect for Parliament which speaks for itself.

I will not weary the House with too much detail from our first report but will focus on six broad conclusions that we reached. First, we asked all our witnesses whether they had any evidence that any single one of the pre-Lisbon measures which fell within the scope of Protocol 36 had actually been detrimental to the UK. Generally our witnesses—and they included those such as Dominic Raab MP, who not only wanted the Government to trigger the block opt-out but wanted them to withdraw from those post-Lisbon measures to which the UK had already opted in—were not able to identify a single measure that had damaged this country. Some of the measures have had no practical impact because the UK was already applying their provisions under our domestic law; some were defunct and therefore irrelevant to the whole exercise; and many had been of positive benefit to the UK, not least by strengthening the fight against serious international crime. So it was clear that the only matter at issue with respect to the pre-Lisbon measures was whether the jurisdiction of the European Court of Justice and the enforcement powers of the Commission should be extended to cover them from 1 December 2014 as the treaty provides.

Secondly, it became apparent from our inquiry that the Government, quite rightly in our view, had no objection of principle to the extension of the European Court of Justice’s jurisdiction and the Commission’s enforcement powers to other aspects of justice and home affairs legislation. How otherwise can one construe the fact that the Government have opted in to a substantial number of post-Lisbon measures—49 at the last count and mounting—which automatically involve the extension to cover them of that jurisdiction and power? As the Home Secretary told us, the Government’s approach was a pragmatic one based on their assessment of the national interest. We applauded that.

Thirdly, we considered carefully whether the existence of EU competence in the field of justice and home affairs—this is an area of shared competence—in some way undermined or weakened the system of common law as practised in this country. We heard some assertions to that effect, but no evidence was given to us to substantiate those assertions. Indeed, to the contrary, we heard a great deal of evidence on the benefits, most particularly from the professional bodies that might have been expected to be most vigilant in that respect. It is, of course, a simple fact that there are four member states with elements of common law in their systems in the European Union: Cyprus, Malta, Ireland and the UK.

Fourthly, we also gave full consideration to suggestions that, even if the UK triggered the block opt-out and did not seek to rejoin, for example, the European arrest warrant, our national interests could be secured in other ways, by relying on Council of Europe instruments or on bilateral agreements for co-operation with other member states. Our conclusion was that such bilateral systems, even if other member states were prepared to negotiate them, which is far from certain, would be slower, more costly and a less sure protection for our citizens than they have under existing EU legislation; and that the Council of Europe instruments would be no equivalent substitute for that legislation.

Fifthly, we looked more carefully than the Government initially seem to have done into what I would call the Irish dimension: the massively improved law enforcement co-operation that now prevails between the Republic and Northern Ireland. While the Irish Government did not wish to give evidence to our inquiry, we heard quite enough from other sources to convince us that that the improved co-operation and the de-politicisation of law enforcement activity on both sides of the border depends largely on the underpinning of EU legislation. Remove that underpinning—and here the European arrest warrant is of central importance—and one would risk the unravelling of structures of co-operation which have done so much to improve the daily lives of our fellow citizens in Northern Ireland.

These five conclusions led us to our sixth and overarching conclusion that the Government had not made a convincing case in favour of their preferred option to trigger the block opt-out and to seek to rejoin a limited number of pre-Lisbon measures. That sixth conclusion has subsequently been overtaken by the decision of both Houses to endorse triggering the block opt-out, but it remains the view of the two sub-committees and of the EU Select Committee itself.

Our second report, for which the Government specifically asked in the Motion that was agreed on 23 July, did not seek to reopen that debate, but rather to focus on the situation following the Government’s notification to the Council on 24 July triggering the block opt-out. Here, too, I will spare the House too much detail and focus on a few salient points. First, we carefully reviewed the 35 pre-Lisbon measures which the Government had stated an intention of rejoining and which this House, unlike the other place, had explicitly endorsed on 23 July. We concluded that the Government had indeed picked out most of the measures that it was essential for the UK, in its own national interest, to seek to rejoin. However, we identified a small number of additional measures, beyond the Government’s 35, which we believed it was in the UK’s national interest to rejoin; and we urged the Government to add these to their list when they sat down to negotiate with the Commission. These included a number of implementing Europol measures which we believed would be judged by the Commission to be necessary to rejoin on coherence grounds, a view with which we had sympathy. However, we also identified the European probation order, the European judicial network and the convention on driving disqualifications which we believed it was in the UK’s national interest to rejoin; and the framework decision on racism and xenophobia, withdrawal from which we believed would do the UK considerable reputational damage, even if our domestic laws were there to give effect to its provisions. I can just imagine President Putin or the Chinese Government rubbing our noses in that withdrawal.

Turning back again to process, we underlined the importance of the Government giving Parliament regular progress reports on the negotiations, by now, I assume, under way with the Commission and the Council; and of their providing a full and detailed impact assessment in good time before they seek the further vote in both Houses which it is their stated intention to hold on the final package of measures that the UK will rejoin. We expressed yet again the concerns that time is short between now and 1 December 2014 to complete the negotiations for rejoining the pre-Lisbon measures identified, which might necessitate putting in place robust transitional measures to bridge any gaps. This would be particularly important in the case of the European arrest warrant, where any hiatus could lead to extensive litigation and perhaps to suspected criminals escaping justice.

The Government’s response to this second report was full, detailed and on time— just. It arrived on the day it was due; on this occasion, sufficiently well in advance of today’s debate for it to be properly considered. For that, credit should be given, but I have to say that much of its content was deeply disappointing and it did not seem to give a seriously considered reaction to the very modest list of additional measures that we suggested should be included among those the UK should seek to rejoin, and which our committees believed that it would be in the national interest to do. The repeated assurance of some negotiating flexibility over the Europol implementing measures is welcome, but they should surely have been on this list from the outset. The explicit recognition that a future Government might well wish to rejoin the European probation order leaves us wondering why we are planning to drop out of it now.

It is good, of course, that the Government have at last recognised that there could be some reputational damage following our withdrawal from the racism and xenophobia decision. No doubt there will be. Only time will tell whether it will be, to use the Government’s word, “significant”. Why incur such damage at all when the reason for doing so appears to be the rather far-fetched fear that the UK might be put under pressure to criminalise Holocaust denial? The reasons given for not rejoining the European judicial network are so threadbare as to be almost laughable, and on the Convention on Driving Disqualifications, it appears that we are going down the road of negotiating bilaterally with the Irish a provision that will replicate the EU measure while ditching all the practical benefits we get from the EU measure vis-à-vis the other 26 member states. Would it not have been an awful lot simpler and certainly more cost-effective simply to seek to rejoin the EU Convention on Driving Disqualifications?

All in all, I fear that it is hard to resist the conclusion that the Government’s approach to calculating the national interest on these measures is purely arithmetical one and not based on the merits of the measures in question. That is why it is to be hoped that, as the negotiations with the Commission and the Council proceed, the Government will think again about their possible inclusion. It is also a reason to take more seriously than the Government currently do our recommendation that there should be a commitment to review the effect of the block opt-out some years—three, perhaps—after it comes into force.

I apologise for speaking at such length, but the subject matter is complex and the issues at stake are of great importance. I would be most grateful if the Minister, in addition to responding to my contribution and those of other noble Lords, would give a progress report on the negotiations with the Commission and the Council. Will he tell the House whether the negotiations started and, if so, when? Will he say when the next progress report to Parliament will be made and give an undertaking to provide the promised impact assessment early enough before the second debate and vote to permit your Lordships’ EU Select Committee, if appropriate, to report to the House ahead of that vote? Will he give some idea of the timing and scope of that debate and vote?

I realise that I have spoken quite harshly about the Government’s handling of this issue. I have done no more than express the views of the committees but, in concluding, I should add one personal observation. The choice offered to the Government under the provisions of Protocol 36 was an exceptionally unpalatable one and, while the committee believes that they may have made the wrong decision, it would be as well to recognise that the drafting of Protocol 36, posing an all-or-nothing choice, was not in the best interests of this country.

--- Later in debate ---

[Lord Taylor of Holbeach]

Of course, but I am just saying that there is an unpredictability about outcomes which all Governments have had to face, and it is a matter that Governments are entitled to weigh in the balance. However, I accept totally that the European Court of Justice also exists to protect things that we consider valuable, too.

The noble Lord, Lord Hannay, and the noble Baroness, Lady Smith, raised the importance of co-operation.

[Lord Hannay of Chiswick]

My Lords, I apologise for intervening, but I wish one could persuade the Government not to treat the unpredictability of a court of law as a reason not to be subject to its jurisdiction. I hope that every court of law in this country is unpredictable. If it were predictable, we would not have the rule of law in this country.

[Lord Taylor of Holbeach]

If I say that the noble Lord makes an academic point, I do not mean to dismiss it, but it is a point which is based on a theoretical view of jurisprudence. As a non-lawyer I would say that the law can have an unpredictability about it even in such well established legal proceedings as we have in this country. Indeed, I am sure that the noble and learned Lord, Lord Lloyd, will agree with that analysis.

I was about to talk about our co-operation with the Republic of Ireland. I felt that the noble Baroness and the noble Lord, Lord Hannay, made an important point. That is why we have engaged constructively with the Northern Ireland Executive and David Ford throughout this process. That is why we continue to hold productive discussions about these matters at all levels.

The noble Lords, Lord Hannay and Lord Davies, and my noble friends Lord Sharkey and Lord Bridgeman also raised the associated Europol measures. I should like to reiterate our support for Europol on its current terms and our intention to rejoin the main Europol measure. However, we do not believe that we need to rejoin the associated measures to do so. Many of the provisions in these measures are legal padding and duplicate the detailed provisions of the main measure. As a result, these measures have no material impact on UK participation or, for that matter, on any other state. They have no impact on our ability to co-operate with others through Europol.

The noble Lord, Hannay, my noble friend Lord Sharkey, and the noble and learned Lord, Lord Lloyd, also identified the probation order as one that we should seek to rejoin. The Government’s position on this measure is set out in full in the response to the committee’s report of 31 December. Only 12 member states have implemented this measure and, to the best of our knowledge, it has never been used. As a result, there is no clear understanding as to how this measure will work in practice and thus very little evidence on which to judge its effectiveness. That is why we are not seeking to rejoin this measure.

The noble Lords, Lord Hannay and Lord Davies, my noble friend Lord Sharkey, the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Smith, raised the issue of the European Judicial Network. As the Government set out in the response to the committee’s report, we believe that Eurojust is more effective than the European Judicial Network at bringing people together and ensuring that the right tools such as joint investigating teams are employed. That is why we are seeking to rejoin Eurojust.

A number of noble Lords raised the racism and xenophobia measures. These have also not been joined or opted out of, and we are not seeking to rejoin. Noble Lords know that this is a highly sensitive area. However, we are clear that our efforts—the noble Lord, Lord Davies, referred to our lead in these matters—to tackle racism and xenophobia do not depend on a measure that adds little practical value. The UK will continue to be bound by the International Covenant on the Elimination of all forms of Racial Discrimination, and the Government will continue to set a national direction and to work at local level with professionals, the voluntary sector and communities to deal with local issues and priorities.

A number of noble Lords mentioned the convention on driving disqualifications. Let me first address the point about ditching the benefits of working with 26 other member states. Currently, this measure only operates between the UK and the Republic of Ireland, so there are no benefits to ditch. However, there are benefits to the bilateral agreement with Ireland. This will allow us to address some of the weakness of the instrument as it currently exists, which we would otherwise be unable to do.

[Lord Taylor of Holbeach]

We will be free to do that in the future. I am just reporting the current situation to the House. We have the freedom to do what we will in the future. It is a question of whether we want to be bound by a directive which at the moment is actually not delivering what the noble Lord has suggested.

The noble Lord also asked for an update on our negotiations with the Commission to rejoin measures. I can confirm that these continue at the technical level, and there are a lot of technical discussions involved in these matters. We intend to update Parliament as appropriate, but we must be mindful that this is a negotiation, and thus we cannot prejudice our position in these negotiations. The noble Baroness, Lady Corston, my noble friend Lord Sharkey, the noble Lord, Lord Davies—

[Lord Hannay of Chiswick]

I would be grateful for a simple answer to a simple question. The Minister said that technical discussions had begun, and he did not wish to prejudice the position in negotiations. Have negotiations begun with the Commission and the Council, or have they not?

[Lord Taylor of Holbeach]

Exploratory talks have taken place and do so all the time. Formal negotiations have not started, and we need to be able to get some of the technical issues resolved before we enter into full negotiations. That is a reasonable position to take. Noble Lords would expect the Government to recognise their responsibility to the UK national interest in this respect. I hope that Parliament would understand the reasons why, at this point, the Government do not necessarily want to reveal the details of these negotiations. All I have said is that there will be opportunities, as these negotiations proceed, for reports to Parliament and for keeping Parliament and the citizens of this country informed about them.

There was a question about impact assessments, and I was going on to say that the noble Baroness, Lady Corston, was particularly concerned about the impact assessments of the 95 measures the Government will not seek to rejoin. I can confirm that it is the Government’s intention to provide, in good time, ahead of the second vote, an impact assessment on the measures that the Government will rejoin. I can also confirm that the Government will discuss the timing and format of the second vote with the chairmen of the relevant committees. However, at this stage, as the noble Baroness will know, we do not intend to provide impact assessments for those measures that we will not be joining.

I was asked what the Government’s view is of the legal test of coherence in Protocol 36. The noble Baronesses, Lady Prashar and Lady Corston, were both concerned about this. The Government consider that in a number of areas the case law of the European Court of Justice makes it very clear that coherence means “legally effective” and so takes us further than the test of practical operability, also in Protocol 36.

I conclude by referring to two speeches made by noble Lords sitting behind me. The first was by my noble friend Lord Jopling, who took the Government to task in a pretty straightforward manner. I assure him that I take my role in replying to the concerns of Parliament extremely seriously. I will do my best to ensure that the circumstances in which he found himself do not recur, but I can only do my best on that.

I have been handed a correction. The coherence test takes us no further, I am told. I apologise if I misread the messages from the Box but this one has come down in big block letters so that I can correct myself. I was seeking to reassure my noble friend about those matters.

I should also like to comment on the speech of my noble friend Lord Eccles. I felt that he placed the debates that we have in this House on our membership of the European Community in the context of our global life—the global existence of our country. It was an extremely valuable contribution and something which, when we deal with the detail of some of these matters, we should always bear in mind.

Perhaps I may say one further, rather personal, thing. I am committed to making a success of the dialogue between the Government and this House. Mention was made of tone and language. I make a plea to noble Lords: let us please try to keep this dialogue on a good basis. I will be as open as I can be with noble Lords and will seek, as best I can, to keep the committees informed, but it is a two-way street. I would hate to think that we ended up having adversarial debates on an issue which is so important to the future of this country. That is a personal plea on which I conclude my contribution to this debate. I will be writing to noble Lords and I thank all who have participated in what has been a very worthwhile evening.

[Lord Hannay of Chiswick]

My Lords, I begin by thanking all noble Lords who have participated in this debate. It has provided wide-ranging and effective coverage of a very complex subject, and I am grateful to your Lordships—both those who are and those who are not members of the two committees and the EU Select Committee.

I should also like to thank the Minister and to respond to his final remarks. He has, with the sincerity and good humour that characterise all his interventions in this House, drawn quite a lot of the sting from some of the very legitimate criticisms to which he has been subjected today. I hope he will reckon that he is held in great respect in this House by all Members and that that respect will be even more increased if he takes back the message from this House of the criticisms that have been levied, although not to him personally. I am grateful to him also for the offer to reply in writing. He has done this in previous debates and it is extremely valuable and welcome to all Members.

By necessity, this debate has been a great deal about process and technical detail and someone listening to it from outside might think that it was confusing. However, I wish to conclude by making a couple of remarks about the wider picture here. The internationalisation of crime is proceeding apace, and nowhere more so than in Europe. We may not have a perfect single market but the criminals have a single market from which they are not hesitating to benefit. We need, therefore, a far greater degree of international co-operation than we have ever had in the past. The legislation we have been discussing on which the Government have triggered the opt-out, the 133 measures, was not designed by a mad group of federalists in Brussels: it was designed by the Justice and Home Affairs Ministers of the member states and every single one of them was agreed by unanimity. We must get away from the mindset which says, “This is imposed on us by Brussels and we should get out of it if we possibly can and if it is not going to be too costly to do so”. That is not a good mindset.

The hard fact is that the security of this country neither begins nor ends at the water’s edge any more: it goes far wider than that. The justice and home affairs part of the European Union’s activities is of great value to this country, and it is likely to be of even greater value if we do not wreck it in the process of this tricky negotiation which we have now undertaken. It is an odd negotiation because, in all my years of dealing with the European Union, it is the first time a British Government have deliberately put themselves at a disadvantage and then asked to get back into many things. It is a fairly odd state of affairs for which, as I said in my opening statement on a personal basis, I do not entirely blame the present Government, who had that mechanism foisted on them by the previous Government.

However, whatever it was, it is an uphill task. I end with the following. I am sure that all noble Lords wish the Minister and his colleagues the best chance of success in the negotiations they are undertaking. I was shocked to hear that six months after the Prime Minister notified the other member states of our decision to opt out of these measures, we still had not begun negotiation. We have all been around long enough to know what exploratory talks mean—and they do not mean negotiation. I hope the noble Lord and his colleagues will shortly come to the House and tell us that we have begun negotiation. Six months out of the 16 available have now passed and they have not led to very much. Our wishes are with the Government that they have success in this negotiation. It is in none of our interests that they should be blocked or fail, but that may require more political involvement and effort and energy than they have shown so far. I beg to move.

Motion agreed.

EU: Free Movement of Labour

Lord Hannay of Chiswick Excerpts

Tuesday 5th November 2013 Lords Chamber

[Lord Taylor of Holbeach]

The noble Baroness has expanded the Question somewhat into Labour policy and that is not necessarily something on which I can support her. However, I reaffirm the Government’s support for the national minimum wage. Indeed, it has never been part of our policy to do other than to maintain a national minimum wage, and we do so regularly.

[Lord Hannay of Chiswick (CB)]

My Lords, will the Minister say whether the Government support the findings of the report published this morning by UCL which demonstrates that there are major benefits to this country from economic migrants from the European Economic Area and the European Union? If the Government agree, does he not think that it is more important to concentrate on the practice of free movement rather than the principle?

[Lord Taylor of Holbeach]

The principle is important but it is the practical that I have been trying to address. I have not read the UCL report but I have noticed the media comments on it and the key findings. I reiterate that what matters now is that we take steps, through our policy on access to benefits and public services, to reduce the incentives for abuse and to prevent this problem from growing.