Grand Committee
(12 years, 10 months ago)
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Arrangement of Business
(12 years, 10 months ago)
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The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, before the first Motion is considered, I remind your Lordships that in respect of each item of business today the Motion before the Committee will be that the Committee do consider the statutory instrument in question. The Motions to approve the instruments will subsequently be moved in the Chamber in the usual way. I further remind your Lordships that if a Division is called in the Chamber, the Committee will adjourn for 10 minutes.
Storage of Carbon Dioxide (Inspections etc.) Regulations 2012
(12 years, 10 months ago)
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Lord Marland
That the Grand Committee do report to the House that it has considered the Storage of Carbon Dioxide (Inspections etc.) Regulations 2012.
Relevant documents: 33rd Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)
My Lords, the development of carbon capture and storage is a significant strand in my department’s work for decarbonising the UK’s energy supplies and therefore for the transition to a low-carbon economy. The Government are committed to making the UK a leading player in CCS. Creating an effective, fit-for-purpose licensing regime is necessary to ensure the safe, long-term storage of carbon dioxide and is a necessary condition for the effective deployment of CCS. The Energy Act 2008 provides for a licensing regime for carbon dioxide storage in the UK, for the appointment of inspectors, and for regulations to be made about their powers and duties.
In October 2010, the Government made the licensing regulations that transpose into UK law most of the requirements of the EU directive on the geological storage of carbon dioxide. These regulations are necessary to ensure compliance with Article 15 of the directive, which deals with inspections of storage sites, and put in place an important element of the licensing regime to ensure the safe, long-term storage of carbon dioxide. Article 15 requires that the competent authorities organise a system of routine and non-routine inspections of all storage complexes within the scope of the directive for the purposes of checking and promoting compliance with the requirements of the directive and of monitoring effects on the environment and on human health. It states that inspections should include activities such as visits to the surface installations, including the injection facilities, assessing the injection and monitoring operations carried out by the operator, and checking all relevant records kept by the operator. Article 15 further requires that routine inspections shall be carried out at least once a year until three years after the closure of a storage site, and subsequently every five years until responsibility for the relevant storage site is transferred to the competent authority.
These regulations amend the existing licensing regulations to implement those requirements. The form of the powers given to inspectors is the same as those that our inspectors have under other regimes to inspect and monitor offshore installations used for oil and gas activities. The bringing into effect of these regulations achieves these requirements and will essentially complete the transposition of the directive. I therefore commend them to the Committee and I beg to move.
Lord Oxburgh
My Lords, I declare an interest as president of the Carbon Capture and Storage Association. Given that geological formations do not respect international boundaries, are protocols in place to handle the quite significant likelihood that some of the proposed repositories will cross the border between Scottish waters and English waters? This is a problem which the oil industry faces and solves regularly, and it is simply a matter of ensuring that appropriate protocols are in place in this area as well.
Lord Teverson
My Lords, having read through these regulations and the Explanatory Memorandum, I find that most of my questions have been answered. I had not thought of the point about Scotland which has just been raised by the noble Lord, Lord Oxburgh, and I note that the Explanatory Memorandum states that this procedure fulfils the Hampton principles. I would like to be clear on that. The Explanatory Memorandum stated that this would require only one person for three days a week, and that that would probably be the same person who inspected oilfields. Does that mean that the regulatory authority is the same as the one that looks at oilfields, or is it a separate authority that uses someone from the other authority? It is important to understand what the Government's proposals are in that area.
I was also slightly surprised to see that there had been no consultation. Perhaps this is a minor area but it is always quite useful to learn from industry, and the directive will be three years old in April.
My other question perhaps falls outside the scope of the order. Is the safety of pipelines or other means of transport to the storage area covered by the directive or is it covered elsewhere? I would have thought that that was potentially more risky than the storage itself. Although carbon dioxide is not directly dangerous, if it excludes oxygen or air, it can cause death through overconcentration.
Lastly, I would like to get an understanding from the Minister. Inspection regimes are all very well, and the UK has a very high standard of inspection in these areas. What does he see as the smart areas of inspection of carbon dioxide storage? What are the things that will need to be looked at? Leakages are an obvious answer, but what work will go on to make sure that the inspectorate is active and forward-looking, and that it makes sure that problems do not arise rather than fixes them after they have arisen?
The Duke of Montrose
My Lords, perhaps I may ask a further question of my noble friend. Will he ensure that the Scottish Executive is up to speed? Presumably they will have to pass similar regulations for their area. On inspections, the areas that he outlined were mainly to do with the injection of carbon dioxide. Will the regime also look at leakage from the storage site, or is that not a worry?
Baroness Smith of Basildon
My Lords, like other noble Lords I have a few questions and points of clarification. First, I welcome the Minister’s opening comments on CCS. He is looking puzzled and I am wondering what on earth I said. He reaffirmed the Government's commitment to a CCS project. He is nodding now, so I must be correct on that. Perhaps he could say something further. My concern is how, when the budget has been raided by the Chancellor and £1 million taken from it, the Government can fulfil that pledge. As the Minister has renewed the pledge, will he give us an idea of the timescale? We know that because Longannet was pulled there have been changes. Does the Minister have any idea of a timescale for when we will see the start of the first CCS project?
I will not labour the points on Scotland because they have been better made by other noble Lords. Have the Government given any consideration to the impact that a referendum on independence would have, and to whether the legislation would have to come back to this House or whether further legislation would have to be put in place? Do the Government have a plan B should that scenario come into effect?
The order distinguishes between routine and non-routine inspections. There will be regular, routine inspections, and if the regulatory authorities are made aware of potential problems, there will be non-routine inspections. I am not clear whether there will be a facility for spot checks: that is, unannounced inspections. If all inspections are announced, there will be time for facilities to get their house in order and make changes, whereas an inspector needs to see what is normal custom and practice in the association or organisation. If they are not aware of any specific problem and there is no routine inspection scheduled, can they make an unannounced spot check to ensure there are no problems?
The order talks about how an inspector would make a report and it would be made publicly available—in what format? Would local authorities in that area be informed that an inspection had taken place and what the results were? Would it be given to Ministers? How would we make the information about that inspection publicly available?
The order does not make clear how long it should take a company to comply with any requirement the inspector has made following an inspection. This is not an operation that can be shut down if there are any safety issues, so it seems very important that if requirements are placed on the operator, they should be undertaken as a matter of urgency. However, it does not say anywhere in the order what the timescale should be or if indeed the inspector would make a recommendation on the timescale. Given that the original inspection report would be made publicly available, would the requirement for compliance be made publicly available as well? If there were requirements made of a company and it had to fulfil certain conditions within a certain period of time, would that information be available in the same way—whether or not they had complied?
Finally, the bit that slightly puzzled me was under new Regulation 20, “Offences”, which says:
“It is an offence for a person … without reasonable excuse to fail to comply with a requirement imposed under Schedule 3”.
What is a reasonable excuse? How dangerous will it be not to comply with any requirements that are made? Should it therefore be an offence with strict liability; that is, whether somebody is mad, bad, ignorant or careless, it is still an offence not to comply with any requirement? I cannot think what would be a reasonable excuse not to comply with a requirement made following an inspection. If the Minister can say something on those points, it would help me to understand the order better.
Lord Marland
My Lords, thank you very much indeed for your excellent questions, and I am delighted that we have the expertise of the noble Lord, Lord Oxburgh, who has more knowledge about this subject in his little finger than I do in my entire body.
As always, the noble Lord asked a very salient question, which of course we can answer. I would like him to understand—perhaps he will nod at me if he does—that we are talking about offshore storage because onshore storage is not contemplated at the moment. The Energy Act 2008 allows for either Scottish Ministers or the Secretary of State to license a site that is partly in the area of the authority and partly in the other. In that regard, there is a memorandum of understanding that will govern the co-operation, so I hope that that satisfies the noble Lord—and deals with one of the questions asked by the noble Baroness, which I will come on to in a second.
The noble Lord, Lord Teverson, invited us to consider who these inspectors are. Of course, they are the same people because they have significant expertise in the oil industry, where I believe we are a leading light in health and safety and have a very strong knowledge of inspectorates. I remind noble Lords that we are going slightly into the unknown here. A lot of good work has been carried out by friends of the noble Lord, Lord Oxburgh, in this area. It is not a proven technology but we have got as close as we can and we are lucky to be able to borrow on the great expertise we have in the North Sea. We did not go into consultation because this is quite a simple subject. We do not really need to consult on it. I am afraid that our department consults far too much and this is something that we should reduce a bit. I hope he will be satisfied that, for a change, we are not consulting—it seems to go on forever and take up a lot of our officials’ time so this is one that we will miss.
Stress testing of the whole thing is the sort of factor we will look for in the inspection regime report. That goes from capture down through the pipelines, to ensure that there is no leakage, that the gas is being transmitted effectively all the way through the process and that it is working because there can be solidification. Then, as the noble Lord rightly pointed out, there may be leakage from offshore storage. We must vigilantly check that all the evidence supports the storage facility being able to contain it and that there is no seepage which inevitably leads to pollution. We are informed that that will not happen but we want to make absolutely sure. They will have to be vigilant in this, particularly, as I said, because it is a demonstration project at this point.
My noble friend the Duke of Montrose asked whether the Scottish Executive are up to speed. We have been working closely with the Scottish Executive. As my noble friend knows, the winner of the first competition was in Scotland. The Scottish Executive have been working closely with us on this throughout and harmoniously—you might say for a change. Our department has a very good relationship with Scotland.
That brings me to the noble Baroness, Lady Smith of Basildon. What more can I say than what I said the other day? The Government are committed to the CCS demonstration project. The Treasury has committed £1 billion. As the noble Baroness knows, I was responsible for negotiating if not achieving the outcome of the first demonstration project. It is important that we get the thing moving quickly. On Thursday last week, I went through the timelines by which we expect to achieve this. We set ourselves an exacting target of being able to appoint or acknowledge the winner of the new process in June or July of next year. That is a very exacting timescale. We had an industry day in December and are having another one this month to set out the framework within industry. We have a lot of interest—from small and large-scale companies. I will not go into that now because it is unfair on those that are competing. The competition starts by March and they have until the middle of June and July to put in their bids. Our current timeframe is that we will announce that winner by the end of September.
Lord Marland
It is all in 2012. I am sorry that I did not clarify that but that is the case. As I said, a lot of people are interested in competing—which is encouraging.
On the referendum issue, regulation is in place within Scottish powers so that that is dealt with. On the whole business of inspection, clearly an inspection is annual but the inspectors have—and should have, as the noble Baroness said—the right to carry out spot checks. As the noble Baroness indicated, that is to ensure that this should not be telegraphed and they think, “Ooh, we have to get ourselves ready for the inspection”. An awful lot of people will spend a lot of time on this because it is very important that the inspection is right. The noble Baroness then moved on to ask whether the information will be publicly available. The short answer is yes. The reports of any non-compliance with the recommendations will be put on the public register so that it will be there for all to see.
She then mentioned reasonable excuse and I had to invite a comment from my officials. I will quickly go through what they said. There is an existing regime to deal with operator failures to comply with licences directions of the Secretary of State. A reasonable excuse might be that there is a good safety reason for not complying during an inspection period with inspectors’ request, for example, to switch off the equipment. If the inspector has requested that the equipment is switched off, that would be a reasonable excuse. However, there will not be many reasonable excuses. I hope that that answers the many excellent questions asked.
Lord Teverson
I thank the noble Lord. Perhaps I may reassure him that I have consulted with the industry since he spoke. The industry is apparently very happy that he did not consult, so I think that that is fine. I want to come back to one question, because it is important to understand it. It would seem to me that on any CCS project, demonstration or otherwise, there has to be some sort of facility for temporary storage at the power station. It might go straight off on a pipeline, but if there is a problem there has to be some capacity for storage at a power station, whether temporary or permanent. Who is responsible for that sort of inspection? Although it is not envisaged that there should be large-scale onshore carbon dioxide storage, I cannot imagine that there will not be any. As the noble Lord, Lord Marland, says, this refers only to offshore, so I would be interested to understand how that is regulated.
Lord Marland
The noble Lord asks an interesting question. I am grateful that he should have given me an elephant trap—which I did not fall into—and dug me out of it. As he rightly says, the current thinking for the previous competition for the demonstration project was entirely for offshore. It could be that there is an onshore project in this competition. It is not thought to be likely at the moment, but it could happen. We would then have to recognise that problem. However, the issue here is not so much about onshore and offshore; it is whether we have the skill and the quality of inspectors. This is a unique process in the large scale; in the small scale it has been proven. All the way along the piece, therefore, we have to ensure that it is being inspected, managed and contained properly. That is why we are giving the inspectorate, which has been so successful in its oil activities, the opportunity as individuals to carry this out.
Baroness Smith of Basildon
I am grateful to the noble Lord for answering the questions. Perhaps I may press him for clarification on one that he did not answer, which I am sure he just forgot. On reports of inspections being made publicly available, my question was not whether they would be—it is quite clear that they will be—but how they would be made publicly available. The noble Lord said that it would be by the public register. Is that a document that is easily available to local authorities and to those of us who have an interest? It is not something I have come across myself or read before. Secondly, if an inspector imposes conditions or requirements to be met within a certain timescale, will the information about whether and when the installation complies with any requirements for an inspection also be made publicly available? Otherwise it seems to me that the inspection report would be available, but the consequences from it would not be. I would like reassurance that both would be made publicly available.
Lord Marland
The information is readily available on the internet, of course; that is a standard practice for public information. The inspection will not stop there; there will be a further inspection to ensure safety and that practices are being followed. An update on that inspection will again be published on the internet, so it will be there to compare. This pre-supposes that an inspection will be carried out and that we will sit back and say that nothing has to be done about it. The whole point about these inspections is that there will be a public record so that people can see that there are issues that need to be dealt with. Of course, the public will expect us to deal competently with those issues. There will be a constant process of information available in relation to the storage, the problems that occur and whether they are being sorted out. We hope that there will not be a mass of problems, but we never know.
Immigration (Biometric Registration) (Amendment) Regulations 2012
(12 years, 10 months ago)
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Lord Henley
That the Grand Committee do Report to the House that it has considered the Immigration (Biometric Registration) (Amendment) Regulations 2012.
Relevant documents: 36th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Home Office (Lord Henley)
My Lords, on 25 November 2008, the UK Border Agency issued the first biometric residence permits, through regulations made under the previous Government’s UK Borders Act 2007, to foreign nationals granted further leave under student, marriage and partnership categories. Since then, the UK Border Agency has made significant progress by incrementally rolling out these highly secure immigration status documents, known in legislation as biometric immigration documents.
Identity-swapping threatens the integrity of immigration control and helps abusers to make multiple fraudulent immigration applications, to work illegally, and to access public funds and services to which they are not entitled. By recording fingerprints and digital facial images, we can check a person against our existing immigration database records and the police fingerprint database before deciding whether to allow someone to stay in the UK. We can then establish a reliable link between the holder and the document by linking the biographical details they give us to their unique biometric identifiers. Further rollouts since 2008 have incorporated points-based system applicants extending their stay in the UK for more than six months and a number of other immigration categories, and more than 600,000 biometric residence permits have been issued to date.
Approval of the Immigration (Biometric Registration) (Amendment) Regulations 2012 will mean the UK Border Agency can complete the in-country rollout of biometric residence permits to all foreign nationals from outside the European Economic Area given permission to stay here for more than six months. The planned date for rollout to new applicants in the new categories, which include those applying for settlement or indefinite leave and asylum or protection, is 29 February 2012. All non-EEA nationals will need to enrol their fingerprints and facial image if applying to stay here for more than six months from this date and they will be issued with a biometric residence permit if successful.
The provision in the regulations for any migrant granted permission to stay for more than six months from 1 December 2012 to apply for a biometric residence permit if they have not done so already is intended to incorporate those who made an application to stay in the UK before a biometric requirement in their immigration category. This ensures that from this date the agency will only issue one format of document to non-EEA nationals permitted to stay here for more than six months.
Rolling out secure biometric residence permits to more foreign nationals helps the UK Border Agency to upgrade and streamline the documents it issues. Volumes of biometric residence permits in circulation will be significantly boosted by this phase of the rollout, which in turn helps employers and others who are becoming increasingly familiar with them. Feedback from employers, businesses and other government departments supports this. The documents provide the opportunity for fast and simple checking and lend themselves to a one-stop check of immigration status, identity and right to work or access public benefits.
As increased numbers of migrants will hold biometric residence permits, these regulations widen the circumstances when they must be presented, to include all immigration applications and also nationality or related applications. The regulations ensure that when presenting these biometric documents, foreign nationals may be compelled to provide their fingerprints for comparison against those in the document, and this is extended for employment purposes. We will trial technology to achieve this with a select number of external organisations during 2012.
In addition to streamlining the immigration documents issued in the UK, biometric permits meet the standardised format of documents set out in European legislation that the UK opted into: Regulation EC 1030/2002, as amended by EC 380/2008, with which I am sure the noble Lord, Lord Hunt, will be very familiar. Aligning with other member states ensures we are not a weak link in Europe for immigration abuse.
Rollout to overseas applicants coming to the United Kingdom for more than six months will require significant infrastructure and system changes, and we will return to Parliament with our plans, including policy proposals, for that final stage. This will be after the accreditation period for the 2012 Olympic and Paralympic Games, to ensure that the integrity and robustness of business-critical systems are maintained.
Lord Avebury
My Lords, I am grateful to my noble kinsman for his careful explanation of the effect of these regulations: namely, that all non-EEA country nationals applying for leave to remain for more than six months under any category of the immigration rules, or outside the rules from 29 February, will have to apply for a biometric immigration document. We do not object to this proposal, but there is a problem with its implementation that needs to be addressed as a matter of urgency, and I hope that we will hear from my noble kinsman what the Government are doing to solve it.
The Public Enquiry Office network, where biometric measurements are taken, is not coping with current levels of demand and the situation is getting worse. At a meeting on 13 December last with officials of the UKBA, including the temporary acting deputy director of the facing teams asylum and business immigration section, and the temporary acting assistant director of the PEO, ILPA expressed grave concern about current processing delays in the PEO, pointing out that it was not meeting its service timelines even though applicants were paying a premium fee. The explanation given for the delays was even more worrying. The UKBA has 22 vacancies and is having difficulty filling the positions even in this era of high unemployment. Perhaps my noble kinsman will say what steps are being taken to ensure that the policies for recruitment, training and promotion within the UKBA will be adjusted to meet staffing needs.
Secondly, I understand that there are severe problems with part of the biometric enrolment IT system, which have led to adverse effects on the appointments system and on processing applications. Will my noble friend place a note in the Library of the House setting out the details of the IT contract for the work of the PEO, including the name of the contractor, the cost of the contract, the target dates, the penalty clauses and any remedial action being taken to deal with the problem? He mentioned the external organisation with which the UK is working to implement the system. It would be useful to have further details on all organisations involved, including the IT system contractor. Surely there ought to be enough experience in the IT industry to make the development of biometric identity systems a matter of routine. I hope that we can have an assurance that it will be fully operational before the extension now being proposed goes live on 29 February, but in a letter dated as recently as 12 January, the UKBA acknowledge that at the main Croydon site,
“the demand for PEO appointments is currently greater than our capacity”.
The letter adds that increased staffing levels are expected in the summer, without explaining why nothing is being done until then.
At some point in the not-specified future, the capacity to capture biometrics is being extended to the Post Office. My noble friend said that that would be some time in the spring but it would be useful if he could give further information about where and when these facilities will be available. Also, what is the earliest date for an appointment at the Croydon PEO for an application submitted today? What does he expect the earliest date to be for an appointment requested for somebody in the group now being required to have a biometric document for the first time on 1 March—or are they being allowed to lodge applications already for some point after 1 March?
On fees, the fee for a married tier 1 general worker and spouse applying together in person for an extension of leave to remain is £2,150. That is £600 more than if the application is made by post. Many people are prepared to pay these enormous sums because they do not want to risk sending in their passports and having them lost. At the moment I am dealing with a case where the holder’s passport was returned by the UKBA to the wrong address. When he made a special journey to that address to try to collect it, he found that the former tenant had moved to an unknown location and the new tenant was not able to help him about the former tenant’s whereabouts. Needless to say, the UKBA disclaimed responsibility for their error in sending the passport to the wrong address. Cases like that make people understandably reluctant to trust the UKBA to look after such an important document.
Finally, is this situation yet another example showing that, as I have pointed out in previous debates, the UKBA is not fit for purpose? It was a prime candidate for the bonfire of the quangos, and the right way to improve its accountability and reduce its overheads would be to subsume its functions in those of its parent department, the Home Office—as I have suggested before without getting an answer. I hope that my noble friend will be able to respond to that suggestion this afternoon but, if not, that he will kindly undertake to write to me about this and the several other points I have raised in the debate this afternoon.
Lord Hunt of Kings Heath
I am grateful to the noble Lord, Lord Henley, for explaining the background to these regulations. To date, the UK has partially complied with the EU regulation by undertaking the rollout of the permit incrementally by immigration application category. We support the general thrust of the regulations, but it would be helpful if the noble Lord would give the Committee an outline of what further stages need to be gone through before the work is complete.
In his speech today, the noble Lord referred to the Written Statement of 6 December in which he said that, on the overseas rollout of biometric permits, the Government will return to Parliament with plans, including policy proposals, for the final stage. This will be after the accreditation period of the 2012 Olympic and Paralympic Games. Will the noble Lord give a little more information about that, and about when he intends to return to Parliament with his plans? Will he also say what will be the nature of the legislation that he will bring to Parliament—is it primary or secondary legislation?
Perhaps I might also ask him about public consultation on the regulations. Page 5 of the impact assessment sets out the process of consultation in some detail, and also refers to two surveys launched by the UK Border Agency in 2011. The impact assessment says that these various consultations,
“have informed the high level policy”.
That is always reassuring to know. However, it is silent on the actual results of the consultation. It would be helpful to know what the main thrust of the results was and how that informed high-level policy.
I would be grateful if the Minister would answer three further questions. First, will he give me an idea of how many permits he expects will be issued under these provisions? The second follows what the noble Lord, Lord Avebury, said in relation to the UK Border Agency’s staff resource issues over the past 18 months. The Minister and his esteemed predecessors brought to your Lordships’ House a number of proposals and changes in policy that added to the responsibilities of the UK Border Agency. We know that the agency has had to bear its share of the cuts in funding to the Home Office. I echo the concerns of the noble Lord, Lord Avebury, that the UKBA has been given additional responsibilities and fewer resources. No doubt the noble Lord, Lord Henley, will talk about efficiencies that he hopes to drive through the system—which is a very fair point—but my experience is that when you do that, in the end the thing falls over. The noble Lord, Lord Avebury, has given examples of the impact on the time taken to process applications, and I hope that the noble Lord, Lord Henley, will come back to us on that.
Thirdly, on IT, the noble Lord, Lord Avebury, suggested that this might be a routine application. My experience in government is that nothing in IT should ever be described as routine. One has to accept that these are very complex issues, but it would none the less be helpful to the Committee if the Minister would say something about the IT challenges that are being faced. Will the Minister also talk about the cost of implementation overseas? How does he anticipate that cost being met out of his budget?
However, in general, the Opposition support these proposals, which of course flow from the UK Borders Act introduced by the previous Government.
Lord Henley
My Lords, I am grateful to the noble Lord, Lord Hunt, for finally getting to that crucial bit at the end and saying—as did his right honourable friend in the Commons—that the Opposition welcome these orders. After all, they simply follow from what his Government started as part of a continuous process of gradual rollout. The noble Lord asked what further stages were necessary for dealing with this. He will be more than happy that I can give him an assurance that—as I understand it; I will write to him if I am wrong—no further primary legislation will be necessary, although there will be a need to return to Parliament with some secondary legislation in due course.
For the overseas rollout of biometric permits, we are completing a very comprehensive analysis of our options to identify the most cost-effective solution that will have the least impact on our customers and will take account of our commitments under EU legislation. A number of factors are relevant, including the timing of the 2012 Olympic Games and the rollout of other new technology for the agency, and we will return to Parliament with this as soon as possible after the Games. For that reason, at this stage I cannot say anything more about what I think the noble Lord described as his third question—although there seemed to be more than three—on the cost of implementation overseas. If I have any further information, I will let the noble Lord know in due course.
The noble Lord also asked how many permits in total we would issue each year. Based on 2010’s published figures, we could expect around 550,000 permits a year to be issued. However, a reduction in this figure to around 400,000 could be expected given the significant number of grants made on a discretionary basis in 2010, mainly under measures aimed at clearing a backlog of outstanding unresolved cases and because of the impact of policy changes to the points-based system. I hope that that assists the noble Lord.
Civil Procedure (Amendment No. 3) Rules 2012
(12 years, 10 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Civil Procedure (Amendment No. 3) Rules 2012.
Relevant document: 37th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Home Office (Lord Henley)
My Lords, I shall speak also to the Rules of the Court of Judicature (Northern Ireland) (Amendment No. 4) 2012 order. The two statutory instruments introduce procedural rules for court proceedings under the Terrorism Prevention and Investigation Measures Act 2011. They add a new part to the civil procedure rules for England and Wales, and a new order to the rules of the Court of Judicature for Northern Ireland. The rules came into force on 15 January last year—the same date that the Act came into force—because it was necessary for TPIM proceedings to take place soon after commencement. However, the Act requires subsequent approval of the rules by each House, which is why we are here today.
The rules substantively reflect the rules that are already in place for control order proceedings. They set out the procedures to be followed when the Secretary of State applies to the court for permission to impose a TPIM notice—or for the court to confirm, or quash, one imposed without prior permission—and for the subsequent directions hearings and review hearings that must be held. The rules also set out the process for an individual to appeal against decisions made by the Secretary of State in relation to a TPIM notice.
The guiding principles behind the court rules are that the decisions that are the subject of the proceedings are properly reviewed; and that the court must ensure that information is not disclosed contrary to the public interest. The rules provide that sensitive “closed material” may be relied upon and must be protected, although the requirements of a fair trial take precedence. They also make provision about the role and functions of special advocates, who may be appointed by the Attorney-General to represent the interests of the individual in closed proceedings.
In our recent debates on the Terrorism Prevention and Investigation Measures Act, the use of closed material and special advocates was explored in some detail. Closed material proceedings are undoubtedly controversial, I accept that, but are necessary to ensure that there can be effective judicial oversight of TPIM decisions, which inevitably rely upon sensitive material.
I can assure the Committee that the use of closed material and special advocates in this type of context is compatible with the European Convention on Human Rights, a position that the courts have confirmed. Indeed, the Act expressly provides that the rules do not require the court to act in a way inconsistent with Article 6 of the ECHR, the right to a fair trial. This is also the effect of the Human Rights Act.
Notwithstanding that the system is ECHR compatible, we understand that concerns remain. The Green Paper on justice and security is looking carefully at the use of sensitive information in civil proceedings, including suggestions as to how the special advocate system can be improved.
The rules provide a framework within which the Secretary of State, legal representatives, special advocates and the court work. In line with those provisions, the Lord Chief Justices of England and Wales and of Northern Ireland were consulted on the draft rules. Moreover, the Civil Procedure Rules Committee was given the opportunity to comment on a draft. I commend the rules and I beg to move.
Lord Hunt of Kings Heath
I am grateful to the noble Lord for his explanation of the two Motions that have been spoken to together. I also thank him for the invitation in our last debate for a meeting with the UK Border Agency chief executive. The noble Lord, Lord Avebury, would wish me to say that we would very much appreciate that opportunity.
We have had extensive debates about the TPIM legislation going through your Lordships’ House, and this is not the moment for me to engage with the noble Lord in another debate on the principle. However, I would like to ask the noble Lord a couple of questions. First, I understand that nine people are currently subject to control orders. Would he be able to confirm that? Can he confirm that all nine people will be the subject of applications in relation to TPIM notices? He will be aware that, of course, a high threshold is required for the imposition of a TPIM notice. The TPIM regime provides for more tightly prescribed powers than control orders. It is therefore reasonable to ask him whether the new regime is intended to apply to all these nine people currently subject to control orders. If it is considered that there are some people who will not meet the new threshold, can he provide some satisfaction in relation to the safeguarding of security interests in relation to those people? I understand that this is a sensitive issue and that the noble Lord may be somewhat restricted in what he has to say, but he will probably get the drift of the general principle that I am putting forward here, which essentially is this. What are the differences between the current control orders and the TPIM notices?
I should like the noble Lord to reassure me about the state of readiness of the police and the security services for the new regime. We have the transition period that will allow the new circumstances to be brought into operation. I shall not go over in great detail the evidence given by the Metropolitan Police to the Special Bill Committee which considered the Bill in the other place, but he will be aware that at that point, the representative of the Metropolitan Police said that it would take at least a year to get the right equipment, resources and people in place in order to be able to implement the new regime. In our debates on the Bill as it went through your Lordships’ House, the Minister and his predecessor were confident that the arrangements would be in place sooner than the period of 12 months. Is he satisfied that the appropriate people are in place, that they have been trained and that they have the right equipment so that the new regime can start in good order from the date set out in the order?
Lord Henley
My Lords, I cannot comment on whether the nine individuals referred to by the noble Lord will transfer to TPIM notices, but what lay behind the gist of his question was whether people, in terms of civil procedures, come under what used to be referred to as the White Book. We are not immediately repealing the old civil procedure, so any that were being dealt with in the courts using the old civil procedures, those procedures will still apply, but the new TPIM ones will be covered by what we are debating today, and they came into effect in December.
Lord Hunt of Kings Heath
That is very helpful. I realise that it is difficult for the Minister to talk about individual people who are affected, but on a theoretical basis, if a person is currently under a control order, is it possible for them to continue under that order? Is that what the noble Lord is saying?
Lord Henley
What I am saying is that if they were still under a control order, they would be dealt with under the old control order civil procedings. I do not think that I can take the noble Lord much further. All I am saying is that we have not repealed the old orders. If they were being looked at under a control order, they will continue under the control order proceedings, and these broadly reflect those proceedings. As I have said, all we are dealing with here is the process of making amendments to civil procedure. It is therefore still possible to use the old procedure for those who are covered by it. But, obviously, control orders will not continue beyond 25 January, at which point it will be a TPIM. What we are debating here is the civil procedure. I hope that that deals with the noble Lord’s queries.
Lord Hunt of Kings Heath
I do not want to be difficult. All I seek is a reassurance. I understand entirely what the noble Lord is saying about the basis for the civil procedure, but I am really looking for some reassurance that he is satisfied that as we move from a control order regime to the new regime, the people who were affected under the old control order regime and need to be subject to those provisions will, in the new circumstances of TPIM and given that the security provisions are paramount, indeed be subject to them.
Lord Henley
Obviously those provisions are of paramount importance, but as I made clear in my opening remarks, the right to a fair trial is also equally important.
The second major point made by the noble Lord was on the state of readiness of the police, which goes wider than the matter we are debating today. The noble Lord rightly said that when I introduced these rules, I made it clear that I was confident that that was the case, but before he even asked the question, he wrote down that I had moved from being confident to being satisfied, which formed the basis of the question he put to me. I can give the noble Lord an assurance that I am satisfied that everything is in place as it should be, and that I think the same is true of the police. With that, I hope that the Motion will be agreed.
Rules of the Court of Judicature (Northern Ireland) (Amendment No. 4) 2012
(12 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Henley
That the Grand Committee do report to the House that it has considered the Rules of the Court of Judicature (Northern Ireland) (Amendment No. 4) 2012.
Relevant documents: 37th Report from the Joint Committee on Statutory Instruments.