Grand Committee

Wednesday 21st March 2012 Grand Committee

Wednesday, 21 March 2012.

15:45

Arrangement of Business

Wednesday 21st March 2012 Grand Committee

Announcement

[The Deputy Chairman of Committees (Viscount Ullswater)]

My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes.

Immigration and Nationality (Fees) Regulations 2012

Wednesday 21st March 2012 Grand Committee

Considered in Grand Committee

15:45

Moved By

[Lord Henley]

That the Grand Committee do report to the House that it has considered the Immigration and Nationality (Fees) Regulations 2012.

Relevant document: 41st Report from the Joint Committee on Statutory Instruments

[The Minister of State, Home Office (Lord Henley)]

My Lords, these regulations concern fees charged for visa, immigration and nationality services. The fees paid by those making visa, nationality and immigration applications must be specified in regulations made under Section 51 of the Immigration, Asylum and Nationality Act 2006. Regulations that set fees exceeding the administrative cost of processing an application must be approved by both Houses before they are made; this procedural requirement is imposed by Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Regulations dealing with fees at or below cost are subject to the negative resolution procedure.

The intention is to introduce two sets of regulations on 6 April that will replace existing fees regulations. The first set of regulations will deal with above-cost fees and must be approved by Parliament before it is made, and it is a draft of these regulations that is before the House today. The second set, dealing with fees set at or below cost, does not require prior approval from Parliament and has already been made. The regulations were laid before Parliament on 15 March. I recognise that having fees in two sets of regulations makes things a little complicated, and I am happy to take points on any of the fees proposals here today.

In general we are proposing to limit the majority of increases to 2 per cent. For example, we propose to increase the short-term visit visa applications by 2 per cent, as we recognise the importance of the visitor route to the United Kingdom economy. This is still about half the actual cost to the UK Border Agency of processing this type of application. Increases to fees that do not follow this approach include tier 1 general extensions of leave; these will increase by 50 per cent. This route is open only to those currently in the UK on a tier 1 general visa that is due to expire during 2013 and confers benefits including unrestricted access to the United Kingdom labour market, and ultimately the ability to apply for indefinite leave to remain. The new fee better reflects the value of these benefits.

Fees for tier 2 visas for migrants coming to the UK to work for a sponsor will rise by 20 per cent to £480; an incremental step towards our objective of aligning fees for the original entry visa with the fee paid in the United Kingdom to extend stay in this route. Thirdly, for media representatives coming to the UK to work for an overseas employer on a long-term assignment, this fee is being increased to align with the tier 2 visa fee to reflect the similarities between the two routes. Fourthly, for tier 2 intra-company transfer visas of less than 12 months’ duration and extensions under this route in the UK, this increase reflects the benefits conferred by this route.

The tier 4 visa fee is being increased to cover the full costs of processing these visas. In the current economic climate we can no longer subsidise these visas. The visa for extended family members of refugees and those with humanitarian protection coming to the UK is also moving to cost recovery. We are aligning it with similar settlement visa routes following changes that were introduced in the Immigration Rules in 2011.

Licence fees to those organisations that sponsor migrants in the UK are increasing to better reflect the administrative costs. For large organisations sponsoring employees to work under tier 2, the fees will be £1,500, while for small businesses and charities we will charge £500.

New fees being introduced include a graduate entrepreneur route in the points-based system. This route is being developed for those who have been identified by United Kingdom universities as having developed world-class innovative ideas or entrepreneurial skills but have yet to meet the requirements of the tier 1 entrepreneur route. This will allow them to develop their business in the United Kingdom

The new fees will cover extending the mobile biometric enrolment service to include applications for indefinite leave to remain, widening the range of services that we can offer our customers, and enabling those who have come to the UK under the tier 1 exceptional talent route that launched last year to extend their stay; this will ensure that we retain the skills and talents of those whom we have attracted to work and base themselves here.

Finally, the new fees will also cover providing certain stateless persons with the ability to acquire—or renounce—the status of British protected person. In addition, the fees paid by dependants of members of the Armed Forces will be frozen at current levels in recognition of our commitments under the Armed Forces covenant.

Legal migration brings economic, cultural and social benefits to the United Kingdom. We will continue to ensure that fees for immigration and nationality send a clear signal overseas that the country will go on welcoming the brightest and the best, and these proposals support that message.

We also continue to monitor the economic, equality and diversity impacts of our changes and to ensure that our fees continue to be priced at levels which make them competitive when compared with those in other countries.

I believe that these regulations provide a basis for a sustainable immigration system that noble Lords will want, and I commend them to the Committee.

[Lord Hunt of Kings Heath]

Once again, it is a delight to follow the noble Lord, Lord Henley, as we deal with orders and regulations in Grand Committee. I am grateful for his very persuasive arguments in favour of these regulations, but I have one or two points to raise.

Clearly, the regulations are about making UKBA pay its way in the world. Does there come a point where providing additional services on a premium basis and dramatically increasing the cost of applying for particular forms run the risk of effectively selling British citizenship? How precisely does the Minister assess the value to an individual who is making a particular application? That is how the amount is now set, it seems. It is not the amount it costs to run or provide the service, but the assessment by UKBA or the Minister of the supposed value to the applicants of the benefits that accrue to them. It would be interesting to know how those figures are arrived at.

What impact does the Minister think that the increases will have on the total number of people applying to come to the UK or to stay once they are already here? Will he say a little more about how much additional money will be raised for UKBA? Some increases are higher than others, but the noble Lord referred to an average of 2 per cent. Clearly, it would be interesting to know the impact on UKBA’s income.

Another point raised in the debate on these regulations in the other place was in relation to Armed Forces personnel and charges for visas. The Minister there referred to the relationship to the military covenant. Can the noble Lord explain a little more about this issue?

Finally, I come to the impact on business and the UK economy. The noble Lord will know that the CBI has condemned the Government’s decision to increase visa fees for working migrants and their sponsors as a bitter blow to UK business. Neil Carberry, director for employment and skills policy at the CBI employers’ group, was scathing about the cost upgrades. He said:

“The shock announcement that some work permit charges will rise between 20 and 60 per cent will come as a bitter blow to businesses. Firms have yet to see the improvements in customer service they were promised, in return for the last tranche of inflation-busting rises last year”.

There are two points here. First, there is the concern that increases in fees will be made but the service will not improve. That is a very important issue that the noble Lord needs to address. Secondly, there is the impact on the UK. I do not know whether the noble Lord has had time to study the article this morning by Willie Walsh, the boss of British Airways, who talks about the attitude of business people in China investing in the UK. Essentially, the perceived discouragement of overseas business men and women coming to this country, combined with policies on airport capacity, is having a chilling effect on investment in this country from countries such as China.

I watched the Budget Statement and was very disappointed that it had very little to say about how we are going to get this country growing again. The Minister may say that that is a little wider than the Home Office’s usual brief, but how policy is developed in relation to immigration and to fees can play an important part. It would be good to know how the Minister will respond to the concern of many businesses. This is also very much related to the issue of higher education and the ludicrous restrictions made on overseas students coming into legitimate institutions in this country. All that is doing is undermining one of our most successful economic sectors.

[Baroness Hamwee]

My Lords, I, too, thank the Minister. As the noble Lord, Lord Hunt, said, some of the reactions to the increase in fees are well known. They are exactly what any Government of any colour would say—that charges should reflect the level of service and be appropriate to it. The problem is that we hear far too often that customer service is relatively poor. It was described to me as a “litany of minor problems”. If you accumulate a set of minor problems, in totality they become more than just minor.

There is a reputational issue, too. I was given the comparison of two people coming to the UK and to Germany; the one who arrived at Frankfurt would be dealt with there and then, whereas the one coming to the UK would have had to send his passport to the embassy in his country in advance. Obviously, there are different arrangements depending on different individuals but, in general, it is a very telling point. Businesses will stop and ask themselves where they should choose to go on that basis. I have been told anecdotal evidence of companies beginning to move their functions away from the UK because of the long-term path of the immigration system. It is, of course, more than just a concern about fees; it is the direction of policy and the complexity of our rules that are in question. I mention complexity in this context because those who have to find their way around the system, being charged what are perceived as high fees—and I hear the point made about the cost—have higher expectations of service. It is quite telling that many businesses engage lawyers and maybe other professionals to advise on how to cope with the system.

The Merits Committee, of which I am a member, commented in its report to the House of the limited analysis of the impact of the increases on business. The letter from the CBI published in the report was really quite measured and clear; it did not use extreme language in any way. It pointed out that in the view of the CBI,

“employers have yet to see the improvements that were promised on the eve of last year's increase, or that of 2010”,

and that,

“where UKBA is seeking to charge firms commercial rates, and is seeking a return … firms have the right to expect a higher level of service”.

I have a question that is obvious, to me, but it may be too soon to give an answer to it. What would be the effect on efficiency and level of service of splitting the border agency into two component parts? It was against this background that I rather blinked to see the proposal for a premium sponsor scheme. I put down a Motion directed to this but decided to withdraw it and simply raise the points during this debate. I have real concerns about this being the thin end of a wedge of our creating a first class and, to use a railway operator’s language, a standard class which is really second or third class. The service is private, but it is a public service as well. I reflect that if there is an attitude that immigration is not of general social value, then that impacts on the whole policy. As I said, it is a public as well as a private service.

16:00

I was also concerned there was no specific consultation on the premium sponsor scheme. I know that it was originally proposed in 2009 and there was a generally favourable response then, but there may well have been a different context in terms of how employers felt about the service at the time. It is fair to say that the reaction now seems to be rather reserved until we see what will be delivered and what value for business there will be in joining the scheme. Clearly, there has to be significantly more than is offered under the current arrangements and I think that we need some clarity.

One thing that bothers me is that the customers of the new premium scheme will not sign up until they know what is on offer. The border agency will not commit itself until it knows what its likely income is and what it will be able to afford. There is a space to be watched there, but one that rings some alarm bells in my own mind.

All this is against a background of more and more tightening for employers as well as individuals and I want to ask about the reasons behind two changes in the immigration laws that are about to come into effect. I warned the Minister that I would do so. The first is on graduate recruitment and the closing of the tier 1 post-study work category and the introduction of the graduate entrepreneur route. That is intended to apply, I understand, to a smaller pool of exceptional graduates. I recognise that that is another route for an employer wishing to sponsor a graduate, but that application cannot be submitted until after graduation as distinct from the current completion of studies. I would be interested to know whether this is about numbers or something more. New graduates who set out immediately on an entrepreneurial route are to be applauded, but I do not think there can be many of them.

Secondly, the cooling-off period of 12 months strikes me as an unfortunate description because in consumer areas it is about changing one’s mind and saying no. Somebody wanting to change employer who leaves the UK will not be able to apply to re-enter until 12 months after the previous tier 2 general permission has expired. This would mean that an individual sent to the UK on an assignment under the intra-company transfer tier, whose sponsor wishes to hire him permanently, cannot apply under tier 2 general until 12 months after the ICT permission has expired.

I do not know how realistic that is. It seems on the face of it likely to prove an obstacle to employers and thus an obstacle to a particular area of economic success. It was not something that I believe was recommended by the Migration Advisory Committee, so why, in the difficult context that we are discussing, have the Government proposed it?

[Lord Avebury]

My Lords, my noble kinsman said that he was going to continue welcoming the brightest and the best, yet some of the announcements that he has made seem to go directly contrary to that, particularly the huge increases in fees for tier 1 general and tier 2 visas for coming to the UK. I suppose that we should give a partial welcome to the graduate entrepreneur scheme. I should like to ask the Minister, in pursuance of the points raised by my noble friend, whether it is aimed at people who have graduated from a UK university. Will they proceed directly from their studies to the graduate entrepreneur route, or will they be required to go back to their own country and make the application from there? Will people who graduate from universities overseas be able to enter the United Kingdom ab initio along this route without having been in a UK institution of higher education previously?

In his Written Ministerial Statement of 9 February, the Immigration Minister, Damian Green, said:

“We have continued with our strategic approach to charging; setting certain fees above cost on the basis of the value of the service”.—[Official Report, Commons, 9/2/12; col. 47WS.]

Both the noble Lord, Lord Hunt, and my noble friend Lady Hamwee have questioned whether there is a proper relationship between these two variables. As I have already said, some of the fees are very high and some were admittedly way above the unit cost estimate. On what basis does the UKBA, or the Home Office, assess the value of the service? What account, if any, do they take of such matters as the appeals success rate and the findings of the chief inspector’s report in determining the quality of the service provided? For example, the chief inspector in his global review of entry clearance made several critical findings. He looked at a sample of the cases decided at all the UKBA’s entry clearance decision-making centres—around 1,500 cases in total—and found that the evidence submitted with the application had not been considered properly in 483 cases, which was 33 per cent of the sample, and that in a further 201 cases, which was 14 per cent of the sample, the lack of evidence held on the UKBA file meant that it was not possible to assess whether the evidence submitted had been considered properly. The chief inspector also found that, in 235 cases—16 per cent of the sample—applications had been refused on the basis that the applicants had failed,

“to provide information which they could not have been aware [was required] at the time of making their applications”.

In 475 cases, there had been a review by an entry clearance manager, and, of those, in 141 cases—30 per cent—the chief inspector found that poor-quality decision-making had not been picked up by the entry clearance manager.

These criticisms indicate that the quality of service being provided is abysmal and that it is sheer exploitation to charge over the cost. In fact, it could be argued that the cost is seriously inflated by the high proportion of wrong decisions, and that the charges should be related only to the costs of decisions properly reached.

A similar view might be taken of the way in which many students have been treated recently when a college’s licence is suspended or revoked, through no fault of their own, but also other migrants whose visas are summarily curtailed. The case of Patel, on the fairness of revoking a sponsor licence, is but one recent example where the Upper Tribunal (Immigration and Asylum Chamber) has needed to issue a reported determination, reminding the UKBA of the general duty of fairness in decision-making, particularly in cases of students whose sponsor’s licence has been revoked and who face, through no fault of their own, losing their immigration application fee and incurring substantial other expenses as a result. The key finding in the Patel case was that, where the applicant was both innocent of any practice that led to the loss of sponsorship status and ignorant of such loss of status, common- law fairness and the principle of treating applicants equally meant that each applicant should have an equal opportunity to vary their application by being afforded a reasonable time in which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford 60 days for such an application to be made.

In previous debates on fees orders, I have raised the question of refunds. For example, in March 2010, I said:

“There should be timeframes for deciding 100 per cent of the cases and, if deadlines are missed, there should be refunds to the individuals concerned”.—[Official Report, 4/3/10; col. 1647.]

The then Minister, the noble Lord, Lord West, replied:

“On refunds, we charge for consideration of the application and so do not offer refunds—the consideration is a cost to us as well”.—[Official Report, 4/3/10; col. 1651.]

I should like to ask my noble kinsman the Minister to reconsider that policy. Why should someone who receives an abysmal service nevertheless have to pay for it? The Upper Tribunal (Immigration and Asylum Chamber) has recently issued the following general guidance in a reported decision:

“Fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known”.

That indicates that the tribunal is seeing examples of what the chief inspector has found in situations other than the entry clearance cases on which the chief inspector was reporting.

I hope that my noble friend will concede that, in any normal business, a supplier simply would not get away with overcharging for services which are manifestly of such poor quality as this, and that the fees in this order are an abuse of monopoly power.

[Lord Henley]

My Lords, I have been asked quite a number of questions and will endeavour to answer as many as I can. I apologise in advance for those that I miss and will in due course write to noble Lords to pick up anything that I fail to deal with.

The noble Lord, Lord Hunt, made the allegation that we were simply selling British citizenship. I do not accept that, but I think that it is right that, when setting fees above the cost, it is perfectly permissible to look at the value to the applicant of a successful application while maintaining the United Kingdom as an attractive destination to work, study or visit. That is why we set the fee for a short-term visit below cost, while a tier 1 or settlement fee is set above cost to reflect the value of a successful application. That is certainly not going down the line, as the noble Lord was suggesting, of selling British citizenship.

The noble Lord then asked about the effect of the fee increases on the number of those coming in. We believe that our fees continue to represent good value for money; indeed, the visa fee is only a small proportion of the overall cost that any individual would pay if they decided to come to the United Kingdom. There is no evidence to suggest that the fee proposals will undermine ongoing plans to promote the United Kingdom as an attractive destination. We do not think that they will have the effect that the noble Lord seemed to imply.

The noble Lord also asked what additional income would be available to UKBA. I can give him an assurance that something in the order of £40 million will be raised. I also make it clear to my noble friend Lady Hamwee and my noble kinsman Lord Avebury, who spoke about service standards within the UK Border Agency, that the agency is exceeding most of its service standards. However, it is important that it generates income to be able to continue to improve standards as is appropriate and to invest in making the United Kingdom border secure and effective while providing the right service for individuals as they come in.

The noble Lord, Lord Hunt, then moved on to the question of the Armed Forces, which I briefly touched on in my opening remarks. We have reviewed the entry clearance visa fees that apply to dependants of serving Armed Forces personnel who come to the UK to join their serving family member. The entry clearance fee for these dependants is being held at 2011-12 levels. This is in recognition of the service to the country of members of the United Kingdom Armed Forces and in support of the Government’s commitment and duty of care to members of the Armed Forces under the new Armed Forces covenant.

16:15

The noble Lord and the noble Baroness, Lady Hamwee, touched on the question of the impact on business and the various criticisms made by the CBI. The noble Lord asked me to comment on the Budget, and I will just say that that is slightly beyond my level at the moment. I can assure him that I read the article by Willie Walsh, which gave some justifiable criticism not just for the Home Office but for all parts of the Government, particularly in relation to his comments about airports. However, I do not think that the noble Lord would want me to go down that route.

In terms of what we do within the UKBA, the fees that we charge and the service that we provide, we believe that our fees compare favourably with key competitors in other countries and offer very good value when considering the benefits and entitlements of a successful application. A recent analysis undertaken by the Australian Department of Immigration and Citizenship supports the Oxford Economics assessment that visa application demand is quite inelastic with respect to moderate changes in visa charges. The Australian analysis shows that the cost of a visa is very low relative to the total monetary value of the business and the high desirability of the product. Historical analysis shows little, if any, correlation between changes in visa prices and volume growth in visa applications. Therefore we do not accept that there will be the effect on business that has been claimed, and we reject the criticisms by the CBI. The United Kingdom Border Agency issues successful sponsor applicants with a licence that allows an employer or, for that matter, an educational service to bring migrants to work or study over a period of four years—and that is not an annual fee. So to refer to this as “a bitter blow” to working migrants and their sponsors does seem to be rather over the top.

If I may, I will move on to some of the concerns about consultation put forward by my noble friend Lady Hamwee. She asked what consultation we had undertaken before introducing these changes, particularly in relation to what she called the first-class and standard-class service. We consulted informally with a number of licence sponsors, representative bodies and other government departments about the proposal for a sponsor premium service, and that enabled us to confirm that a number of high users of the system would be willing to pay for an enhanced service from the UK Border Agency. We have gained, we believe, a clear understanding of which benefits would be welcomed in addition to the standard sponsored package. I do not accept the suggestion that the new premium service is just a way of making additional income. We have listened to the potential customers of UKBA and they have told us that they would be willing to pay for it. We think that is a matter that we should accept.

[Baroness Hamwee]

I hope that I did not put it in quite the stark terms in which he reflected it back to me. I was concerned, rather than making any allegations, because there are no details yet of a scheme to which I can respond. Is it intended that, when there is more clarity following the work to which he has referred about the particular services that might usefully come within such a scheme, there will be a further round of consultation, discussion or conversation—call it what you will—before the scheme is finalised? What I have picked up is the feeling that there is a real lack of clarity and that it is difficult for employers to respond at present.

[Lord Henley]

My Lords, I apologise for that misunderstanding of the point being made by my noble friend. I cannot give her an absolute guarantee that there will be further consultation, but I will certainly make sure that she is provided with the appropriate clarity that she seeks. We would obviously want to make sure that employers have that clarity as well, because if they do not they will not be able to make use of the system.

I turn to my noble friend’s questions, of which I was grateful that she gave me notice. First, with regard to the tier 1 post-study work closure supplemental, as my noble friend accepts, the focus of the debate should be on fees, but we have to look at the matter in the wider policy context for immigration. The tier 1 post-study work route will close on 6 April; currently it provides graduates with unrestricted access to the labour market for two years. A UKBA survey revealed that 30 per cent of those with post-study work leave were in low-skilled employment or unemployed. In a time of high unemployment in the UK, it was right that we should close that route. From 6 April graduates who wish to remain in the UK and work will need to apply through tier 2 and the points-based system and need to be sponsored by a licensed tier 2 sponsor. The minimum salary threshold for tier 2 is £20,000 or the appropriate rate for the job as detailed in the tier 2 codes of practice, whichever is the highest.

My noble friend also asked about the advice from the Migration Advisory Committee and what we had or had not asked it. The committee was asked to advise on appropriate economic criteria for settlement and recommended a simple pay threshold as a good indicator of skill. The cooling-off period that we referred to, which my noble friend asked about, was not part of its remit, but that was covered in the Government’s consultation document on employment-related settlement, tier 5 and overseas domestic workers. We believe that it was right to include in the changes to Immigration Rules laid on 15 March, as part of the package of changes intended to break the link between work and settlement and to reposition tier 2 as a primarily temporary route, a 12-month cooling-off period for tier 2 migrants.

I think that I have dealt with most of the points. I wanted to get on to the general criticisms of my noble kinsman—that is, my noble friend Lord Avebury—about service standards and the question as to whether refunds would be paid. As I made clear earlier, we believe that the UK Border Agency is meeting most of its targets. I accept that there will be failings on occasions; that is always the nature of things. The UKBA monitors and publishes its own service standards and makes them available on the website. It is committed to improving the service that it provides; that is why I talked about the investment and why the fees are important. It will take steps to address issues that may prevent it from achieving its service standards.

My noble kinsman then finally asked whether refunds could be paid for bad decisions. He quoted a response from the last time he tried to get something on this from the previous Government, from the noble Lord, Lord West. I do not always agree with everything that came from opposition spokesmen when they were in government, or otherwise, but on this occasion I am in full agreement with the noble Lord, Lord West, and there has been no change in policy. I hope that that deals with most of the points.

Motion agreed.

Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2012

Wednesday 21st March 2012 Grand Committee

Considered in Grand Committee

16:25

Moved by

[Lord Henley]

That the Grand Committee do report to the House that it has considered the Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2012.

Relevant document: 43rd Report from the Joint Committee on Statutory Instruments

[The Minister of State, Home Office (Lord Henley)]

My Lords, I beg to move that the Committee considers the draft Schedule 5 to the Anti-Terrorism, Crime and Security Act 2001 (Modification) Order 2012. The draft order was laid before the House on 1 March 2012.

Protecting the public from terrorism will always be the principal priority of this Government and we are committed to ensuring that the police and others have the powers that they need to tackle terrorism. But there is also a need to guard against placing disproportionate burdens on business, industry and academia.

The purpose of the Anti-Terrorism, Crime and Security Act 2001 is to ensure that the Government have the necessary powers to counter the terrorist threat to the UK. Part 7 of the Act is intended to improve the security of dangerous biological substances that may be targeted or used by terrorists.

Schedule 5 lists the substances that are subject to the provisions of Part 7 of the Act. Any laboratory that intends to hold one of the controlled pathogens and toxins must notify the Home Office and comply with physical, personnel and electronic security advice as directed by the police. A pathogen is a biological agent that can cause disease or illness.

The purpose of the draft Schedule 5 to the Anti-Terrorism, Crime and Security Act 2001 (Modification) Order 2012 is to add one pathogen to the list of controlled pathogens and toxins in Schedule 5 to the 2001 Act and to remove four pathogens. The draft order sets out the specific details of the modification, which I will not repeat now.

The list of controlled pathogens was reviewed by a group of Government, academic and industry experts with the aim of ensuring that it was up to date with scientific advances and emerging terrorist threats and diseases.

Pathogens and toxins should be added to or remain on the list only if we are satisfied that the pathogen or toxin could be used in an act of terrorism to endanger life or cause serious harm to human health. Conversely, where we are satisfied that a pathogen or toxin could not be used effectively in an act of terrorism, we should seek to remove it from the list to remove unnecessary burdens.

The approach used to review the list of controlled pathogens and toxins is a robust one. Experience with lists of pathogens produced for health and safety at work shows that there is always debate about the inclusion of individual pathogens and toxins on such lists and that they need to be reviewed from time to time as more information becomes available. The key is to make pragmatic decisions based on the available knowledge of the experts involved.

The threat posed by the possible terrorist use of pathogens and toxins remains real. It is imperative to ensure that terrorists do not have access to dangerous substances but it is also important to ensure that the measures are proportionate and important scientific research and medical use are not restricted.

If the draft order is approved by both Houses, it will come into force on 1 October 2012. I believe that the modification strikes the right balance and therefore commend it to the Committee. I beg to move.

16:30

[Lord Hunt of Kings Heath]

My Lords, once again, we are grateful to the noble Lord, Lord Henley, for his full explanation of the order before the Grand Committee this afternoon. I support the general thrust of what he said and will support the order. I just want to ask a couple of points. Could he say a little more about the consultation process? I note from paragraph 8.1 of the Explanatory Memorandum that,

“Laboratories and law enforcement staff were consulted”.

Were other agencies also consulted that might have an interest in this area? I also want to ask him about paragraph 12.2. Very helpfully, the Explanatory Memorandum points out,

“The outcome will be subject to expert review in 2013”.

Obviously these are sensitive issues, but I wondered whether the outcome of that review in general would be made available in the public domain and whether there might be an opportunity at that point for further debate in Parliament.

Clearly the UK remains in a state of alert against the threat of the use of biological weapons, and that is absolutely right. The Minister will know that his own department and the police have suffered reductions in their budgets. Will he confirm that that has not had an impact on our capacity to deal with the particular threat posed by these biological substances?

The impact assessment, which I found helpful, makes it clear that, in relation to biological agents, inspections are carried out by the Counter Terrorism Security Advisors, who are located within police forces and are responsible for providing specialist protective security advice to local organisations, with their work co-ordinated by the National Counter Terrorism Security Office. My understanding is that the CTSAs have the responsibility to undertake security assessments of laboratories holding Schedule 5 substances and, as stated above, have the power to require improvements to their security arrangements operation. These are located within police forces.

I want to ask the Minister about police and crime commissioners. Will he assure me that the Home Office is satisfied that police and crime commissioners would not be in a position to inhibit the work of these people to carry out their security assessments of laboratories? What would happen if a police and crime commissioner sought to intervene with a chief constable to say that they did not think that this was a particular priority? If the noble Lord thinks that I am on a flight of fantasy, I would remind him of the actions of the Deputy Mayor of London, Mr Kit Malthouse, who has sought to interfere with the Metropolitan Police in the exercise of its operational responsibilities when it comes to phone hacking. The noble Lord was not, alas, able to be present for our debates on the police and crime commissioners except, I think, at the very end, but we raised those issues. So I think that it is entirely relevant for me to ask that question in relation to ensuring the integrity of our national security and ensuring that any perversity that might come from certain elected police commissioners would not in any way interfere with overall government responsibility for national security.

[Baroness Hamwee]

My Lords, rather like the debate that we had on the drugs order yesterday, I think it is quite hard for lay people—certainly such as I am—to judge proposals such as this. We have to rely on the experts and are grateful that they are there to advise. My noble friend the Minister has referred to the balance that has been struck. I take the point about the need for there to be a balance, although I was interested to read in the notes attached to the impact assessment the list of criteria used by the Lightfoot review as to which biological agents should be included or excluded from the list. In particular, it was quite interesting that ease of production was one of them, since a substance, a pathogen or toxin was of a level of danger or not. I do not see that as affected by the ease of production, but I suppose that the whole area of risk is quite tricky.

Like the noble Lord, Lord Hunt, I looked at the paragraph on consultation and cannot believe that the health services were not consulted. The impact of any of these getting loose, as it were, is clearly relevant to them. Could the Minister say a word about their involvement in the process?

Apart from those questions, I support the order.

[Lord Henley]

On consultation and who was brought on to the expert panel, there was a government, academic and industry expert panel comprising representatives of the Health and Safety Executive, the Health Protection Agency, the Defence Science and Technology Laboratory, the Department for Environment, Food and Rural Affairs, the National Counter Terrorism Security Office, the Security Service and the Department of Health. I can give that assurance to both noble Lords. I imagine that it would also have included representatives from the devolved Departments of Health, as well as the National Institute for Biological Standards and Control, the Association of the British Pharmaceutical Industry, Imperial College, the Centre for the Protection of National Infrastructure and, last but not least, the Home Office. That expert panel considered which pathogens handled in UK facilities could have potential to cause very serious harm if used by terrorists. We then had two 12-week consultation exercises, and the consultation document was made publicly available. Communications were targeted at law enforcement and bio-laboratory communities by e-mailing invitations to respond to each force and laboratory through their professional association. We had relatively few responses to that consultation—only about 20—but that is to be expected in such a specialist area.

The noble Lord’s second point related to cuts in the budget. I repeat that it is very difficult in the Home Office and all other departments having to cope with reductions in expenditure. However, we all accept that we can still do the job and do it properly, and I can assure the noble Lord that I still believe that that is possible.

Lastly, the noble Lord raised the point about PCCs. It was a nice try, but they will not be able to inhibit or damage any of the work under the Anti-terrorism, Crime and Security Act. The obligations are set out clearly in Part 7, and the police have a duty to explore those obligations. I do not believe that that is a matter on which we will see interference from PCCs.

I hope that that deals with the questions from my noble friend and the noble Lord. I beg to move.

Motion agreed.

Localism Act 2011 (Consequential Amendments) Order 2012

Wednesday 21st March 2012 Grand Committee

Considered in Grand Committee

16:39

Moved by

[Baroness Hanham]

That the Grand Committee do report to the House that it has considered the Localism Act 2011 (Consequential Amendments) Order 2012.

Relevant document: 41st Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, the consequential provisions order makes amendments to existing legislation in relation to policies implemented through the Localism Act relating to the general power of competence, compulsory acquisition of land and neighbourhood planning.

The parish councils order, which I will also speak to, sets out the conditions that parish councils will need to fulfil in order to be eligible to use the general power of competence.

The Localism Act (Consequential Provisions) Order 2012, as implied by the title, will make consequential amendments to particular provisions in existing primary and secondary legislation following the enactment of the Localism Act 2011.

The order provides for amendments in three specific policy areas, each of which has its own schedule. These are: the general power of competence; compensation for compulsory acquisition of land; and neighbourhood planning. I will consider each of these schedules in turn. The amendments in Schedule 1, Article 2, deal with the insertion of text referring to the general power of competence into various pieces of legislation, such as the Industrial and Provident Societies Act 1965. References to the well-being power are, however, being retained in two particular circumstances. First, the well-being power is being retained in Wales because Welsh Ministers were offered the opportunity to have the general power of competence but they decided against it. Secondly, it is retained to deal with the historical exercise of the well-being power by English councils—for example, where bodies such as ALMOs were established using those powers.

Schedule 2, Article 3, covers the compensation arrangements for compulsory acquisitions of land. The amendments in Schedule 2 are necessary to fully implement changes brought about through Section 232 of the Localism Act. This section of the 2011 Act reformed the planning assumptions for compulsory purchase compensation and, in doing so, replaced Sections 14 to 16 of the Land Compensation Act 1961 with new Sections 14 and 15 only.

As a consequence, this means that references to Section 16 elsewhere in statute must be removed. This is achieved by paragraphs 1(2) and 3(2) of the schedule. The remainder of paragraphs 1 and 3 are transitional provisions to align with those in the commencement order and interpretation provisions. Section 232 also replaced Sections 17 and 18 of the 1961 Act with new Sections 17 and 18. These make provision for the issuing of certificates of appropriate alternative development.

Paragraph 2 of Schedule 2 amends paragraph 55 of Schedule 2 to the Local Government Act 1972 to reflect these changes. Paragraph 55 deals with any necessary consultation arrangements between county and district planning authorities. The amendments set out in Schedule 3, Article 4, of the order cover neighbourhood planning. Part 2 of Schedule 9 to the Localism Act amends the Planning and Compulsory Purchase Act 2004 to provide for a new category of development plan—a neighbourhood development plan. These plans will be made by local planning authorities on the initiative of parish councils or neighbourhood forums.

The amendments in paragraph 1 of Schedule 3 to the order amend Schedule 8 to the Planning and Compulsory Purchase Act 2004, which makes transitional provision in relation to old plans and policies. To ensure continuity of a plan-led system, the transitional provisions allow for the life of local plan policies to be extended and saved until replaced. Local planning authorities replace the saved polices with new policies in stages as new development plan documents are adopted.

Paragraph 5 of Schedule 8 to the Planning and Compulsory Purchase Act 2004 defines a new policy as one contained in certain planning documents. The amendments to Schedule 8 to the 2004 Act will both extend the types of planning documents that new policies are contained in to include a neighbourhood development plan, and also set out when a new neighbourhood planning policy is published for the purposes of transitional arrangements.

While the amendments contained in this order are in the main technical and, in some cases, quite hard to follow, they are vital to ensuring that the provisions contained in the Localism Act 2011 work as intended. I commend this order to the Committee.

16:45

I turn to the second order under consideration, the Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012. The new general power of competence provided for local authorities in the Localism Act 2011 is an important part of the Government’s decentralisation agenda. It is intended to provide English councils, including certain parish councils, with confidence in their legal capacity to act for their communities and in their own financial interests to innovate and generate efficiencies. As discussed earlier, it replaces the well-being power in the Local Government Act 2000.

It was the Government’s view that, while the well-being power was intended to be a broad power of first resort, it fell short of a truly general power; for instance, it did not allow local authorities to participate in mutual insurance arrangements or to act solely in their own financial interests.

The general power of competence provides local authorities with the same power to act as an individual. It has been designed to give councils more freedom to work in new ways with others to drive down costs and to give them increased confidence to do creative things. It was brought into effect for all principal authorities in England on 18 February in response to the High Court judgment against Bideford Town Council.

The order will enable parish councils that meet the conditions set out in the schedule to resolve to use the general power of competence. This power will equip them to take on the expanded role that we envisage them playing in our decentralisation agenda and let them to do things that they have been unable to do previously. We have been clear that extension of this power to parish councils is conditional. Parish councils vary greatly in their ability and capacity to take on the enhanced role and responsibility of an authority with a general power of competence.

A draft of the order before your Lordships today was placed in the House Library before debate began in Committee on the then Localism Bill. While this order is not identical to the draft placed in the House Library, the differences are drafting amendments to aid clarity.

The order under consideration requires parish councils to resolve at a full meeting of the council that they meet two key conditions to access the general power of competence. These are that at least two-thirds of the councillors must hold office as a result of standing for election, rather than being co-opted, and that the clerk to the council must have obtained relevant training.

Once the order is in force, the general power of competence provisions in the 2011 Act will be in place for the full range of local authorities intended. At present, the Parish Councils (Power to Promote Well-being) (Prescribed Conditions) Order 2008 requires parish councils to fulfil four conditions to be able to use the well-being power. We are no longer asking that at least 80 per cent of councillors be trained in use of the power, nor are we asking parish councils to produce a statement of community intent as to community engagement. The reduction in the number of conditions that a parish council must meet to be able to use the power, together with the new ability to resolve to use the power for the first time following a by-election rather than having to wait until the next ordinary election, provides the right balance between democratic accountability and understanding to enable parish councils to make best use of the power.

Once a resolution to use the power has been passed, a parish council remains eligible until the next annual meeting in a year of ordinary elections—up to four years—whether or not the conditions relating to electoral mandate and qualified clerk continue to be met. While we are keen for parish councils to strive to continue to meet these reasonable conditions of use, there will be circumstances where, through the loss of a clerk or elected councillor, the conditions are no longer met. It would clearly be impractical for eligibility to be assessed on a day-to-day basis. The order also provides for circumstances where a parish council cannot pass a further resolution at its next relevant annual meeting or decides that it does not wish to continue to use the power for whatever reason. Article 3 of the order will enable activity using the power that has been started but not completed to be continued.

It is important that parish councillors are provided with appropriate advice in taking on the enhanced role that the general power of competence will enable. We are therefore keen to make sure that the parish clerk has the right knowledge, skills and competencies. The qualifications that a clerk must hold for the purposes of this order are based on the approved training for parish council clerks set out in the quality parish council scheme run by the National Association of Local Councils. The order also makes provision in case the qualifications themselves are changed or updated.

The clerk must have completed the relevant training in the use of the power. As agreed with my department and the National Association of Local Councils, the Society of Local Council Clerks is currently updating the training material so that, once the order is in place, parish clerks will be able to undertake the appropriate training or update their existing qualifications in line with the requirements of the order.

The order will complete the Government’s coalition promise to provide a general power of competence for English local authorities. It will allow parish councils to meet two conditions to use the new power and it is an important step along the way towards the devolution of power from the centre to the most local tier of local government closest to their communities. I commend the order to the Committee.

[Lord Shipley]

My Lords, I thank my noble friend the Minister for the explanation of these two orders. I will speak to them both because, substantially, I have only one point to make.

I am particularly happy with the general power of competence applying to parish councils. It is absolutely right that clerks should be qualified and that there is a clear democratic mandate for the parish to undertake the general power of competence. But I have one question that relates to the duty to co-operate. I seek confirmation that there will be an application of the duty to co-operate.

One of the issues that arose when we discussed the Localism Bill was that neighbourhood planning had been addressed from a rural rather than an urban perspective. Of course it applies in both. Albeit that 1973 is a long time ago, the consequences of the policy in those days are broadly with us today. In rural areas, some parish councils were created to lie within what are now urban areas. My concern relates to a failure of a duty to co-operate between parish councils and the areas around them.

There could, for example, be a situation in which parishes have a neighbourhood plan but the adjacent non-parish area does not have a neighbourhood forum, or where a parish does not have a plan and the adjacent neighbourhood forum has been created and it does. Or there could be a situation where both the parish council and the adjacent neighbourhood forum could be contiguous and the plan of one would impact on the other. It is very important that where they both want to have a plan there is clear co-operation between the two.

There is a whole set of issues around whether urban neighbourhood councils or parish councils should be extended. That is for others to decide. But it is important, particularly in the context of the community infrastructure levy potentially applying, that a clear duty to co-operate should be imposed on parish councils and on other councils in exactly the same way that there is a duty to co-operate between neighbouring district councils.

In short, with a general power of competence, it is important that there is a general duty to co-operate as well. I simply seek the Minister's assurance that that is what is planned.

[Lord Beecham]

My Lords, I am pleased to join two fellow north-easterners in the Minister and the noble Lord, Lord Shipley, in reviewing these revisions. I certainly endorse their commending the extension of the general power of competence to parish councils.

I do, however, have questions about the detail of the proposals. I confine myself to the second instrument that the Minister proposes. My first question relates to the provision about the resolution, which will allow a council to proceed with the exercise of the general power. The council, having passed such a resolution, is able to continue to exercise that power until the next relevant annual meeting—even if, for example, it loses its clerk at some point during that period. I hesitate to say so, but parish councils do not have the highest reputation for stability in relationships between their own members or between members and clerks. They have been the source of vast numbers of complaints to the now abolished standards board. It is conceivable that a clerk, perhaps because of a disagreement or perhaps simply because he or she moves, leaves a parish council for the greater part of a four-year period. Yet the council could continue to exercise its general powers without the benefit of the kind of advice which, very sensibly, as the Minister outlined, can be secured through qualifications and training. Is it wise to allow for such a potentially long period?

There is also a transitional provision safeguarding those who have to deal with the parish council in those circumstances. I understand this. The Explanatory Memorandum states that the provision would ensure that councils,

“do not lose the incentive to continue to meet the conditions once they have initially become eligible. It also provides certainty for third parties in their dealings with parish councils as to the extent of a particular council’s powers”.

That is the point. It would seem to apply to not just existing projects but new projects to which a parish council, in between the appointment of clerks or resolutions, might embark upon. Is it all that sensible to make that provision? On similar lines, the Explanatory Memorandum points out that if a council does not pass at the “next relevant annual meeting”, for whatever reason, a resolution, either because it does not qualify through having a qualified clerk or because it changes its mind, an,

“activity that has been begun but not completed may be continued”.

I can see the logic of that, but I wonder about the word “completed”. Let us suppose, for example, that a parish council decides to undertake the maintenance of playing fields or provide a facility—it could be anything from a public convenience to meeting rooms or something of that kind. In that example, what does completing that project actually mean? If it is a contract, I can understand it; if it is not, I do not quite understand how it could be judged to be completed. Therefore, it would potentially seem that something could just continue indefinitely, even though the council has either become ineligible or does not pass a further resolution. There is a possibility for difficulties there.

The Explanatory Memorandum says:

“The Government’s expectation is that eligible parish councils will strive to fulfil the conditions at all times”.

That is in the motherhood-and-apple-pie part of the Explanatory Memorandum. If anything, what do the Government have in mind, preferably in conjunction with the National Association of Local Councils, to see that that expectation is fulfilled? I would hope that the national association would be helpful in supporting the Government’s expectation. Of course, not all councils are members of the national association; some have deliberately absented themselves from it, including some of the larger ones—unless they have rejoined since my time, when I was engaged with them on behalf of the LGA. So there is potentially an issue there as well.

There are two other points on which I seek clarification of the present position, or on whether the Government might be interested in pursuing them. The first, in a sense following the point made by the noble Lord, Lord Shipley, is whether the general power extends to councils combining for particular purposes. Would the power extend to allowing two neighbouring parish councils to set up something jointly in the way that councils in, for example, Greater Manchester have come together to do things together across the piece, serving a wider area than the individual parish? I assume that it is intended, but it would be as well perhaps to have that on the record.

17:00

The final question is whether the Government, through the good offices of the national association, would encourage peer review of parish councils. It does not have to be an elaborate process, but I think that it would be helpful. We have certainly found it very helpful in local government generally, as the noble Lord will confirm. Indeed, as we speak, our own authority is undergoing a process of peer review—that does not mean by Members of your Lordships’ House; it means, of course, by other comparable authorities. If that could be encouraged, I think that it would be helpful to parish councils, their members and their clerks. Again, without seeking to impose any duty in that respect, it would be helpful if the Government could indicate that they thought it desirable and might enter into some discussions with the national association.

There is one other matter that I need to raise. In the impact assessment for general powers of competence published with the Localism Bill—now, of course, the Localism Act—is the following passage:

“However, local authorities would continue to be obliged to follow the law of the land”.

That is a perfectly straightforward statement. The impact assessment continues:

“As an example; our proposals will not enable local councillors to wage thermonuclear war due to existing preventative legislation including: the Nuclear Materials (Offences) Act 1983, the Nuclear Safeguards Act 2000 and the Environmental Permitting (England and Wales) Regulations 2010”.

I seek an assurance from the Minister that those restrictions will also apply to parish councils, without which I really fear for the safety of the world.

[Baroness Hanham]

My Lords, I thank both noble Lords for their comments and their questions. With regard to the last point raised by the noble Lord, Lord Beecham, it would probably be proper that parish councils should be associated with those regulations as well. It conjures up all sorts of possible things that might happen, but it would be appropriate that they were covered.

First, on the point raised by the noble Lord, Lord Shipley, regarding parish councils and their neighbouring area, the power would work only provided that they both had powers to do so. So in perhaps part of a parish, if the neighbourhood did not have that power because it either was not a parish council or it was not a neighbourhood forum, that would not work; but as long as it does have that power, they are able to and, indeed, ought to co-operate, because it seems very clear to me that that should be what is required. I thank the noble Lord, Lord Shipley, for his support on that point.

With regard to what happens when the department of a clerk or one of the councillors gives up, it is correct that they would be eligible and able to carry on using their power until the next election. That was the case also with the well-being power; there was always an assumption that they could continue. However, they will have to continue doing it under their own mandate to ensure that they do not breach any of the other laws. The order recognises that, if there are longer-term projects in train, they can carry on. The noble Lord asked, “How long is a piece of string?”, and I take his point, but the string is as long as making sure that the project comes to a conclusion. It might be a contract; it might be that a council is deciding whether to make a playground or to ask for the listing of a piece of land; but they can properly do that and cannot be challenged for it. A council is eligible to complete a project for up to four years if that is the time between elections.

I was asked about peer review. Peer review at the moment is voluntary, being carried out by the Local Government Association. With parish councils, I suspect that it would have to be with the co-operation of the National Association of Local Councils—I cannot see anything to stop that happening. As with other local authorities, peer review is often helpful and often produces some very useful results. However, there is no legislation to say that it should happen. If a council wishes to do it, and someone in the local associations feels that it is appropriate, it can happen.

[Lord Beecham]

Would the Minister feel able, in the language that government use these days, perhaps to nudge the association into suggesting such an idea to its members?

[Baroness Hanham]

The most that I can do is to record the fact that we see the value of it at the moment and it would seem appropriate, therefore, for people to consider doing it subsequently. I think that I have covered most of the points raised.

[Lord Beecham]

Could you comment on the scope for authorities to act jointly?

[Baroness Hanham]

Under the general well-being power, they would be able to act together, but, as I said to the noble Lord, Lord Shipley, that would be as long as they both had the power to co-operate.

I hope that I have covered the points made. That concludes our work on the order.

Motion agreed.

Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012

Wednesday 21st March 2012 Grand Committee

Considered in Grand Committee

17:07

Moved by

[Baroness Hanham]

That the Grand Committee do report to the House that it has considered the Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012

Relevant document: 41st Report from the Joint Committee on Statutory Instruments

Motion agreed.

Committee adjourned at 5.08 pm.