House of Lords
Economic Policies
(12 years, 5 months ago)
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Lord Low of Dalston
To ask Her Majesty’s Government what is their latest assessment of the success of their economic policies.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, returning the UK to sustainable, balanced economic growth is the Government’s overriding priority. Although considerable external risks remain, the Government’s actions to reduce the deficit and rebuild the economy have secured stability and positioned the UK as a relatively safe haven, with interest rates near record lows benefiting families, businesses and the taxpayer.
Lord Low of Dalston
I am glad that we are no longer expected to thank Ministers for their replies. I am becoming increasingly concerned about the gap between what Ministers say about the economy and what is actually the case. In the debate on the Queen’s Speech, the Minister told the noble Lord, Lord Skidelsky, that sustainable recovery was underway. When I asked him on 29 May how he squared that with the fact that we were in double-dip recession, he palmed me off with references to the success of the private sector in generating jobs and exports. No sooner were the words out of his mouth than manufacturing output plummeted. It is up a bit in June, but yesterday we learnt that activity in the construction sector had fallen at the fastest rate for two and a half years. We are probably heading towards a third-quarter recession.
Lord Low of Dalston
What has the Minister to say about all of that; and can we believe a word of what he says when he has said it?
Lord Sassoon
My Lords, I will try to make the answer shorter than the question.
Lord Sassoon
The noble Lord, Lord Low of Dalston, raises some important points. Let me try to summarise. On the one hand, the public sector deficit has already been reduced from 11% to 8% of GDP. Public sector employment is down more than 400,000 from the unsustainable levels that it had reached. That is very real progress and we are on track on that dimension.
On the other side, we should not underplay the real success of the private sector in the most difficult and challenging conditions. Some 800,000 new jobs have been created since the election—166,000 new private sector jobs in the past quarter. Unemployment is down by 51,000 in the latest quarter. The private sector is doing a fantastic job to get this country out of the mess that we were left with. That is what it is all about.
Lord Barnett
My Lords, last week, the noble Lord misled the House in a reply to a question from my noble friend Lord Peston. He said that the IMF supported the Government's “fiscal course”. May I quote directly from what the IMF said? It said that although it endorsed the deficit cutting plans of the Government, if growth failed to pick up it would help to consider delaying cuts in expenditure and also,
“focus on temporary tax cuts and greater”,
infrastructure expenditure. The noble Lord likes the IMF. Will he take its advice?
Lord Sassoon
I did not bring my IMF quote book today to trade on this one, because the Question is about the Government's assessment of the success of their economic policies, not what the IMF is saying about them. I am sure that we will come back to that on another occasion.
Lord Forsyth of Drumlean
My Lords, although reducing the deficit, and even more so the debt, is important, is not relying exclusively on reducing the deficit a bit like playing golf with only one club? Do we not have to have more emphasis on supply-side measures that will encourage the private sector to create the jobs and wealth that the country desperately needs?
Lord Sassoon
My noble friend is completely right, and it would be a one-club game if we were not doing all sorts of things on the supply side, such as reducing corporation tax from 28% to 22%, the national loan guarantee scheme of £20 billion, cutting red tape for the first time in living history, enterprise zones, the Regional Growth Fund, the largest number of apprenticeships ever funded by any Government and completely overhauling the planning system, to name a few supply-side reforms.
Lord Grocott
Is it in any way conceivable that some of the responsibility—just a smidgeon—for the fact that we are in a double-dip recession lies with the Government?
Lord Sassoon
We are working extremely hard on the reforms that I have talked about to make sure that we have sustainable public finances and a more balanced economy.
Lord Sharkey
My Lords, the latest report from the Federation of Small Businesses shows, in the second quarter of this year, an increase to 73% in the number of small businesses finding access to credit difficult and an increase to 41% in refusals of credit applications. Given the Government’s efforts to provide funding for the banks to lend to businesses, can the Minister explain why this is so?
Lord Sassoon
My Lords, even though the latest business surveys show that private sector employment is significantly up and that manufacturing and service sector sales continue to grow, it is certainly the case that that is happening in the face of very tough financing conditions. That is why, among other things, the national loan guarantee scheme and the announcements from the Chancellor and the governor about the new funding for lending scheme, details of which will be put out in the coming weeks, were very important.
Lord Peston
My Lords, bearing in mind the extreme antipathy of the Europhobes on his own Benches and their desire to leave the European Union, why therefore are they so happy to have our economy run by the credit rating agencies?
Lord Sassoon
I am not sure that was a question that was addressed to me. However, I do not think that characterises the position of any noble friends of mine.
Lord Dobbs
My Lords, will my noble friend cast his mind back to the memoirs of the last Labour Chancellor—and how good those words sometimes sound—in which he described the situation at the end of his tenure of office as being “brutal and volcanic”? It is not clear to me whether he was talking simply about the economic situation that he passed on or his relationship with the Prime Minister, but when my noble friend looks at the sea of outrage opposite, does he not think that, even for them, it comes a bit rich?
Lord Eatwell
My Lords, as but one little wavelet on the sea of outrage, may I ask the noble Lord whether, when he referred to the Government achieving stability for the British economy, he was referring to their achievement of reducing the growth rate from 2% to zero?
Lord Sassoon
My Lords, I was referring to 800,000 new private sector jobs since the election. I am talking about interest rates at levels we have not seen for 300 years, and more of the same.
Vehicles: Insurance
(12 years, 5 months ago)
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Baroness Oppenheim-Barnes
To ask Her Majesty’s Government how many uninsured vehicles are in regular use on United Kingdom roads, and what action they are taking to reduce that number.
Earl Attlee
My Lords, 1.2 million vehicles are recorded as being uninsured. Our actions to reduce this are, first, the offence of keeping a vehicle without insurance; and, secondly, allowing insurers access to DVLA driver details on penalty points and disqualifications in order to reduce fraud. The Secretary of State recently hosted a cross-government summit with insurers on measures to reduce the cost of premiums, which would lessen the incentive to drive uninsured.
Baroness Oppenheim-Barnes
My Lords, I thank my noble friend for that reply. Is he aware that in France all motor vehicles have to carry a pink disc alongside their equivalent of our tax disc, with their insurance details obvious in the windscreens at all times and updated when required by law? Surely this is a simple way of assessment as other members of the public will notice cars that are not carrying a pink disc and any policeman or other enforcement officer passing by will know immediately that a car is not insured.
Earl Attlee
I thank my noble friend for a very sensible suggestion. However, under the new system of continuous enforcement insurance the vehicle keeper will have to insure the vehicle or declare it to be off the road by means of a Statutory Off Road Notice. If the keeper does neither, a fixed-penalty notice for £100 will be issued. This will strip out the softer evader, leaving a smaller group of more persistent evaders for the police to target on the road. Another little difficulty with my noble friend’s suggestion is, of course, that the insurance may have been cancelled due to non-payment of the premiums.
Baroness Scott of Needham Market
My Lords, the number of young people who have been found to be driving without insurance has halved in the past three years, which is very welcome, but the very high cost of insurance for young people is proving very difficult for many of them. What discussions are the Government having with the insurance industry to make life a little easier for young drivers?
Earl Attlee
My noble friend makes an extremely important point. On 2 May, my right honourable friend the Secretary of State for Transport hosted a cross-government insurance summit with the insurance industry to take stock of the action taken since the Prime Minister’s summit in February to reduce the cost of motor insurance. We are working closely with the industry to outline further measures being taken to reduce premiums.
Lord Foulkes of Cumnock
Will the Minister explain why, while the number of motor accidents has gone down, the number of personal insurance claims has gone up? That means that the cost of insurance has risen substantially. Did the summit that he has just referred to discuss this, what conclusions did it come to and what action has been taken as a result of its conclusions?
Earl Attlee
My Lords, we are working with the insurance industry to reduce the level of fraud. We are aware, for instance, that at 76%, the UK has twice the average percentage of whiplash claims as a proportion of personal injury claims. So we are well aware of the problem and we are working on it.
Lord Mawhinney
My Lords, will my noble friend explain why he believes that the French Government and, I believe, the Irish Government find having insurance discs next to tax discs on the windscreen perfectly acceptable when, presumably, French and Irish people might be subject to the same temptations which he uses as an argument not to have it in this country?
Earl Attlee
My Lords, as I gently pointed out to my noble friend Lady Oppenheim-Barnes, the problem with an insurance disc is that the insurance may have been cancelled due to non-payment. What is the use of having an insurance disc that can be cancelled?
Lord Campbell-Savours
The Minister has not answered the question he was asked. If it works abroad, why can it not work here?
Earl Attlee
My Lords, I suggested very good reasons as to why it would not work.
Earl Attlee
We also have a much better system, which is continuous enforcement, and we will clamp down on those motorists who do not insure their vehicles.
Baroness Gardner of Parkes
Is the Minister aware that many people who come here from other European countries insure their vehicles there, bring them over here and then take them back again to buy very cheap insurance? If anyone has an accident here involving one of those vehicles, the claim is almost impossible to enforce. Is he aware of that and can anything be done about it?
Earl Attlee
My Lords, I am not aware of the detail of what my noble friend is telling me. However, I will ask my officials about it. I would point out that the number of foreign vehicles operating in the UK is relatively small.
Lord Hughes of Woodside
My Lords, I believe the Minister said that there has been a summit with the insurance companies and that the Government were working closely with the insurance industry. Will he publish the conclusions of those summit meetings with a checklist of what the Government are doing about it?
Earl Attlee
My Lords, I will write to the noble Lord with an update and place a copy in the Library.
Lord Roberts of Llandudno
My Lords, what conversations does the Minister have with other countries within Europe and with those outside to ensure that all the heavy trucks on UK roads are insured?
Earl Attlee
My Lords, we cannot use the DVLA database to work out whether a foreign truck is insured. It would be a matter of the truck driver producing his insurance paperwork, but I am not aware that there is a huge problem with commercial vehicles being uninsured. The much more serious problem is their mechanical state.
Lord Davies of Coity
My Lords, if there is some improvement as a result of what they do in Ireland and France, why do not we do something that will be an improvement on the current situation?
Earl Attlee
My Lords, I have already explained my position on the insurance disc. I cannot understand why noble Lords find it so difficult to understand. A few weeks ago I went out with Hampshire police and the police officer, using his ANPR equipment, stopped a motorist because she was uninsured. The reason she had no insurance was that it was cancelled because she could not keep up the payments on it.
Elephant Poaching
(12 years, 5 months ago)
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Lord St John of Bletso
To ask Her Majesty’s Government what measures to address the increase in elephant poaching and the illegal sale of ivory to the Far East they plan to support at the Standing Committee meeting of the Convention on International Trade in Endangered Species on 23 July.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, as a party to the Convention on International Trade in Endangered Species, the UK is supportive of CITES’s increasing focus on enforcement and work to reduce elephant poaching and the illegal trade in ivory. Defra officials are working with the European Commission and other member states to agree a common position to be taken in preparing for, and negotiating at, the CITES meeting in three weeks’ time.
Lord St John of Bletso
My Lords, I am grateful to the Minister for his reply but is he aware that a recent analysis, commissioned by CITES, indicates that as many as 12% of Africa’s elephants were poached last year in order to satisfy the burgeoning demand for ivory, particularly from Asia? Based on this analysis and the 2007 estimates of the continent’s elephant population, in excess of 35,000 elephants may have been killed last year. Can the Minister provide assurances that the British Government will use their influence to ensure that the European Union will reject any proposals for further ivory sales, including stockpiles, and the down-listing of the elephant population?
Lord Taylor of Holbeach
Yes, I can give the noble Lord that assurance. We certainly cannot be confident that smuggling and the poaching of ivory are currently under control. The Government take very seriously the threat to elephants and other wildlife from smuggling and the international trafficking of wildlife products. Richard Benyon, the Minister responsible, announced last year that the illegal trade under CITES, in particular the trade in elephant ivory, is a UK wildlife crime priority for the National Wildlife Crime Unit.
Lord Clement-Jones
My Lords, I declare an interest as a trustee of Space for Giants, the wildlife charity. I heard what my noble friend said about a common position with the EU, but are this Government having direct conversations with member states to ensure that the EU votes as a bloc to prevent those further ivory sales?
Lord Taylor of Holbeach
That is exactly the purpose of the negotiations that Defra is engaged in at the moment. The meeting to be held in three weeks’ time is very important and we want to have a common position, which indeed will protect elephants from the threats that they face from poachers.
Lord Faulks
My Lords, is the Minister aware that in South Africa almost two rhino are poached every day? The value of rhino horn is now in excess of the value of gold. What additional measures can be taken to protect the ever diminishing number of these beautiful and important animals in Africa?
Lord Taylor of Holbeach
I could not agree more with my noble friend. The threat to the rhino is acute, particularly given the scale of the population and the threat that it is under. The UK chairs a working group on this issue, with a wide remit to look at the question of poaching for rhino horn and the drivers of the illegal trade in it. This work is progressing well, and our leadership of that group is important.
Lord Harrison
My Lords, further to the question about black rhino horn, which was brought to my attention when I visited Chester Zoo recently, will the Minister have urgent consultations with the Vietnamese and Chinese ambassadors? The Vietnamese are very worried that black rhino horn, which is an aphrodisiac, is sold on to people in China. Will he turn his attention to that important area?
Lord Taylor of Holbeach
I am sure that the Government are well aware of these particular problems, the patterns of this illegal trade, and the threats that it poses to these populations. We are not complacent about it. I thank the noble Lord for that recommendation, and I am sure that colleagues will take that up.
Baroness Buscombe
My Lords, can the Government do more in terms of the cultures of those who are involved in this trade? Perhaps there are ways in which we could use technology to encourage young people who live in countries which deal in this trade to change their hearts and minds about the use of elephant tusks, and rhino horn in particular, and then ask them to have an influence on their elders.
Lord Taylor of Holbeach
Noble Lords will be aware that there are a number of programmes that are designed to address just these sorts of issues. However, these attitudes are complex, cultural, and difficult to shift. There are two ends to the problem. One is the weakness of enforcement in certain African countries, and the second is the persistent demand for these products. Both of them pose a threat to wildlife, and this Government are doing their best to stamp them out.
Lord Knight of Weymouth
My Lords, as we have heard from the noble Lord, Lord St John of Bletso, poaching for ivory is on the rise and is of great concern. An example is the story of poachers from Sudan coming over and killing as many as 650 elephants in a Cameroonian national park in the first two months of this year. I am reassured by what the Minister said in terms of the UK position at CITES later on this month. Do the Government accept that their credibility in that negotiation is to some extent governed by how well we enforce CITES in this country? On that basis, will he give some reassurance about sustaining funding and support for the National Wildlife Crime Unit, which is responsible for gathering information and intelligence around CITES infringements in this country?
Lord Taylor of Holbeach
I think that I have already mentioned the commitment of my colleague, Mr Richard Benyon, and the high priority that this is being given. As noble Lords will know, the border agency is responsible for seizing these products and identifying them, and it operates, of course, on intelligence, which is most important. In many ways ivory has presented the least numerical challenge compared with many others in the CITES area. However, I agree that it is by demonstrating our own vigour that we present a confident position to our colleagues.
Baroness Sharples
Can my noble friend say whether the ivory is poached for so-called medicinal purposes?
Lord Taylor of Holbeach
It is believed that some is for medicinal purposes, but the majority is for ornamentation.
Royal Bank of Scotland: LIBOR
(12 years, 5 months ago)
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Lord Empey
To ask Her Majesty’s Government whether and when they were made aware by the Royal Bank of Scotland that the bank had dismissed employees for inappropriate behaviour in relation to setting LIBOR rates.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, the Government are aware that several banks are being investigated by the Financial Services Authority in relation to the setting of the LIBOR rate. While the investigation is going on, it would be inappropriate to comment on any specifics relating to the Royal Bank of Scotland. My right honourable friends the Prime Minister and the Chancellor of the Exchequer announced the Government’s response to the LIBOR issue on Monday.
Lord Empey
I thank the Minister for his response. Before I ask my principal supplementary question, I ask: will the Minister comment on the disastrous handling by RBS Group of the customers of Ulster Bank, who are still suffering over two weeks after the crisis began?
With regard to my main Question, will the Minister tell us what instructions he has given to UK Financial Investments Ltd, which looks after taxpayers’ interests with regard to shares held by the Government in various banks? Can he assure the House that the reporting mechanisms back to the Treasury as principal shareholder, particularly in RBS, will be such as to enable the Government to pick up evidence of any malpractice or inappropriate behaviour at an early stage?
Lord Sassoon
My Lords, on the RBS/NatWest/Ulster Bank IT failure, RBS has assured customers that nobody will be left out of pocket as a result of the problems. There is a Question down for tomorrow—number 4—from the noble Lord, Lord McAvoy, that touches on Ulster Bank, so I am sure we will return to that tomorrow.
On the instructions to RBS and the monitoring of them, the Government manage their shareholdings in RBS at arm’s length through UK Financial Investments and the governance arrangements are set out in the framework document and the investment mandate between UKFI and the Treasury. It is all there transparently on the website. I believe that those arrangements continue to be appropriate for the arm’s-length management. As it happens, UKFI published its annual report only this week. It sets out a very full account of the issues that it has been engaged in with RBS and with Lloyds Bank. I believe that all the appropriate channels are there and that there is a high degree of transparency. I can reassure the noble Lord on that.
Lord Flight
My Lords, will the Minister advise the House how many banks from how many countries provide regular LIBOR information in order to produce the average LIBOR rate?
Lord Sassoon
My Lords, I was looking at the setting of one of the rates the other day, and there is a panel of 18 banks. I think that is typical of the number of currencies and the different time horizons, so it is of the order of 18 or so banks on each one. Of course, they are typically the complete spread of global banks. It is by no means an activity of UK banks, notwithstanding the name of the rate.
Lord Davies of Stamford
My Lords, at the heart of the LIBOR scandal we now have a classic conflict of evidence—
Lord Morris of Aberavon
Will the Minister confirm that the legal provisions for the offences—
Lord Davies of Stamford
I have already given way once. Tucker is saying one thing and Diamond is saying another, so one or other of them must be lying. On the outcome—
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
When two noble Lords are trying to speak at the same time one really ought to give way to the other. They are both from the Labour Party so perhaps they ought to decide among themselves.
Lord Morris of Aberavon
Will the Minister confirm that the legal provisions for the offences of conspiracy to defraud and false accounting are sufficiently wide to cover most, if not all, of the wrongdoing in this field?
Lord Sassoon
The noble and learned Lord clearly points to a couple of very important offences in this area, but in the various inquiries that my right honourable friends have announced we also want to see whether there are any gaps. There is one obvious and glaring gap, which a Front-Bench spokesman from the Opposition conceded a couple of days ago, in that FiSMA is defective in the sense of not allowing direct prosecution for LIBOR fixing under the regime, and that needs to be put right.
Lord McColl of Dulwich
In view of the poor behaviour of the banks, could we consider changing the name “bank holiday” back to its original name, “Lubbock Day”? The workers used to call them St Lubbock Day, after the distinguished MP, the grandfather of the noble Lord, Lord Avebury.
Lord Eatwell
My Lords, the Minister will be aware that at Prime Minister’s Questions today my right honourable friend Ed Miliband emphasised the need for great speed in sorting out the issues around the LIBOR scandal, and the need for more considered speed with respect to wider issues. Surely the greatest speed would be achieved by a judicial inquiry which could now sit for five days per week. How many days per week will a parliamentary inquiry sit?
Lord Sassoon
My Lords, it is not a question of trading how many days one inquiry or another will sit. I could read out the long list of judicial inquiries that have taken two, three, four, five or 10 years and more. We believe that a parliamentary inquiry can do its work effectively by Christmas. These matters will be debated in another place tomorrow.
Lord Elystan-Morgan
My Lords, going back to the Question asked by my noble friend Lord Empey, can the Minister tell the House, without going into specifics, what was the first point in time at which the Government gained any information about the possibility of the rigging of LIBOR?
Lord Sassoon
My Lords, I am tempted to go back into history beyond the last two years but the answer is that I cannot. It would be inappropriate to discuss that while investigations are still going on.
Finance Bill
Broadcasting (Local Digital Television Programme Services and Independent Productions) (Amendment) Order 2012
Baroness Garden of Frognal
That the draft order laid before the House on 23 May be approved.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 25 June.
Armed Forces Act (Continuation) Order 2012
(12 years, 5 months ago)
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Lord Astor of Hever
That the draft order laid before the House on 22 May be approved.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 25 June.
European Union (Approval of Treaty Amendment Decision) Bill [HL]
(12 years, 5 months ago)
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Lord Owen
I do not wish to detain the House but, on the point that I raised on Report, the Minister with his customary kindness and courtesy has written me a letter. As I understand it, on that point, there will be no obstacle. In some circumstances, when there might be a crisis in the eurozone, the procedures adopted will allow the Government to use the unanimous procedures for amendment, which were part of the Lisbon treaty, in the European Council and to bring the matter to this House to declare that the amendments regarding a transfer of power are not significant in relation to the UK, while simultaneously, saying that there would be a referendum in this country to deal with other wider measures.
Lord Liddle
My Lords, I say on behalf of the Opposition that it is very necessary that the Bill should pass. It is more necessary in the light of the deepening of the euro crisis and last week’s European Council meeting, at which the role of the ESM was strengthened in both its ability to recapitalise the banks directly, which is the key to restructuring the banking system, and its ability to buy bonds where countries that are complying with their obligations are under pressure. Therefore, this facilitating measure is very necessary.
My fear about the question of a referendum, which was raised by the noble Lord, Lord Owen, is that when the Bill goes to the other place, many Back-Benchers who do not share his political views may use the opportunity of the Bill to make the case for holding a referendum on British membership of the European Union very soon. From the Opposition’s perspective, at this moment, this is a complete distraction. It is no answer to the economic problems on which this country should be focusing and no substitute for an effective policy on the European Union.
Those who demand a referendum do not even know what they are asking for a referendum on. They say that they joined a Europe that was in favour of free trade, but even on that question they are not clear about whether they want to take Britain out of the EU, so that we would then face protectionist barriers, or whether we would then be in the European Economic Area, where we would be bound by the rules but would still contribute to the budget. This is a complete distraction because of confusion and we should not go down this road. We want effective action from the Government to protect Britain’s interests in the light of the necessary measures to strengthen the eurozone. However, at the moment, we do not see in Brussels a Government who are engaging with and getting inside the discussions; they want to be outside, which is a disaster for the UK national interest.
Lord Foulkes of Cumnock
Does the Minister recall the Committee stage of the Bill, when we debated several amendments tabled by a diligent Back-Bencher? If he recalls that, and the time that was taken over very careful and correct scrutiny of the Bill, will he confirm that those amendments and many more could have been tabled on Report and at Third Reading? Will he draw to the attention of the Leader of the House that if he and the Government continue in the way that they are, there might not just be one awkward Back-Bencher on one Bill but many awkward Back-Benchers on many Bills?
Baroness Falkner of Margravine
My Lords, this is a vital measure but a very small and technical one. Throughout Second Reading, Committee and Report, the opposition Front Bench supported it, as did most people around the House. It is now important that it goes through to the House of Commons, where it should pass as speedily as possible, because the eurozone and the broader EU need to get on with solving the crisis.
Lord Stoddart of Swindon
My Lords, I am sorry to intrude further on the time of the House. I shall be brief. I took part in proceedings on the Bill, speaking at Second Reading, in Committee and on Report. The matters raised by the noble Lord, Lord Liddle, today go far beyond what is contained in the Bill. I should very much like to answer the points that he made but, in deference to the next Bill and the time of the House, I will not do so.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, I am rather in the same state of mind as the noble Lord, Lord Stoddart, on these matters. I am grateful to the noble Lord, Lord Liddle, for his first words confirming the support of Her Majesty’s Opposition for this Bill, although his later remarks, while interesting, seem to be spectacularly out of order; but never mind about that.
In his intervention, the noble Lord, Lord Owen, raised extremely important and wider issues, which I think all in this House would wish to discuss at the appropriate time. However, this Bill is simply concerned with approval to amend Article 136 of the Treaty on the Functioning of the European Union, and it would be inappropriate, perhaps even out of order, for me to stray into a debate on these matters now.
I would emphasise to the noble Lord, Lord Owen, that, as I think he knows, I would be very happy to discuss his ideas on the future of the European Union, the eurozone and the single market—as, if I may say so, set out in his recent book on this subject, which is full of very interesting ideas—and I hope that we will have the opportunity to do that. If he would like to put down a Question, it will be possible to answer in even more detail the specific points that he has raised today. I think that that is the best way forward. However, as there are no amendments to this Bill on Third Reading —although amendments were excellently advanced earlier with great precision by a certain Member of this House—there will be no further amendments. I beg to move that the Bill do now pass.
Crime and Courts Bill [HL]
(12 years, 5 months ago)
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Lord Avebury
“( ) This section shall not have effect in relation to an appeal against a refusal of entry clearance where that decision was taken wholly or partly on a general ground for refusal in rules as laid by the Secretary of State for the purposes of section 1(4) of the Immigration Act 1971.”
Lord Avebury
My Lords, the intention of Clause 24 is that refusal of a family visit visa will no longer be subject to a right of appeal, save on human rights or race discrimination grounds. However, as I shall explain, the race discrimination ground has been inadvertently removed, except in Northern Ireland.
In July 2011, the UK Border Agency stated in the publication Family Migration: A Consultation:
“Many British citizens and persons settled in the UK have family members living outside the UK. This results in a high volume of visa applications from people wishing to visit family in the UK”.
It goes on to say that such visits,
“are a means of maintaining family links and of enabling family members living abroad to participate in important family occasions in the UK, such as births, weddings and funerals. Such visits and associated tourism also bring economic benefits to the UK”.
The following month, the Prime Minister said:
“If it hurts families, if it undermines commitment, if it tramples over the values that keep people together, or stops families from being together, then we shouldn't do it”.
Clause 24 will undoubtedly stop many families being together by denying persons refused a visa to visit family a right of appeal to an independent tribunal to correct wrong assertions by entry clearance officers that otherwise would lead to the refusal of their current and future applications to visit family.
The rise in the success rate of appeals in family visit cases, from 19% in 2004 to 45% in 2010, underlines the necessity of the right of appeal against refusal. If Clause 24 remains in the Bill, nearly half of all applicants in future will be wrongly rejected and will have to reapply at a cost of £78 for a single visit or £270 for multiple visits over two years to get the decision reversed.
So what is the argument for this proposal? The Immigration Minister, giving evidence to the Home Affairs Select Committee, complained that there were many more appeals than had been anticipated in 2000, when the right of repeal was restored. He suggested that the removal of the full appeal rights would be better for applicants because, if a genuine mistake has been made on the application, the amended version is normally dealt with in 15 days, whereas an appeal takes eight months. Clearly, one good reason for the increasing volume of appeals is that the quality of first decisions has progressively deteriorated, as shown by the steady increase in the proportion of successful appeals. Another is that, as successive reports of chief inspectors have revealed, many refusals are not to do with a mistake by the applicant but a mistake by the ECO, or because applicants had to submit additional material, the need for which they could not have anticipated at the time of the original application.
Mrs N, who lives in Beirut, where she is the carer of her 89 year-old mother, has been here a dozen times in the past decade and has had no difficulty getting visas to visit her husband, a Londoner who is a close friend of mine. Now she has been refused a family visit because, they say, she has insufficient ties to Lebanon. This is one example of the way in which applications are being refused on the basis of failure to supply information, the need for which the applicant could not have anticipated. The agency dealing with applications for family visits in Beirut now wants a doctor’s certificate and bank statements from the applicant’s mother, documents that have never been required in the past. The Minister turned that sort of situation around and said that 63% of the appeals lost by the UKBA were the result of new evidence introduced at appeal stage. One way in which to reduce the number would be for the UKBA to make it clear exactly what information it wants in the explanatory notes that it sends to family visit applicants.
In 2011, the UKBA chief inspector, as he was then, looked at entry clearance decisions where there is currently no right of appeal. He found that the ECO had not properly considered the evidence in one-third of the 1,500-odd cases examined and, in a further 14% of the sample, it was not possible to determine from the file whether the evidence had been properly examined. In 16% of the cases, the refusal was based on failure,
“to provide information which”,
the applicant,
“could not have been aware”,
was required,
“at the time of making their application”.
When an ECO wrongly impugns an applicant’s integrity in the reason for refusal, if the applicant is not able to clear his or her name it may well be relied on to refuse any future application whether for a family visa or some other type of visa, whether in an application to the UK or some other country. In some circumstances the previous allegation by the ECO will require any future visa application to be refused for up to 10 years—for instance, when the ECO alleges that the applicant has made a false statement in his or her application. Among the reasons given for refusal of family visit applications are that the applicant is not genuinely seeking entry as a visitor only or is not intending to leave the UK at the end of the visit. Refusals may also include reasons impugning the character of the applicant, such as that she has made a false statement in her application. Any false statement would require the application to be refused. The right of appeal, at which family members appear and can give oral evidence, is essential to afford a proper opportunity to answer allegations as to the integrity of the applicant or her relations.
If your Lordships approve Clause 24, it will normally be possible to challenge these refusals only by way of judicial review or administrative review, a process internal to the UKBA, introduced in 2008 to replace the full right of appeal against refusal of entry clearance in student and worker visa cases dealt with under the points-based system. That involves a review by an entry clearance manager of the decision by the ECO, a procedure which means, as David Winnick MP observed in the Home Affairs Select Committee, that the UK is “judge and jury” in its own cause. The chief inspector, in his global review, looked at 475 such internal reviews and found that in 30% of the cases the entry clearance manager failed to pick up on poor decision-making by the ECO. He was explicit in finding that the internal review system is not working effectively.
The Immigration, Asylum and Nationality Act 2006 required the Secretary of State to lay before Parliament a report on the effect of removing the full right of appeal in points-based system entry clearance cases. That report, in March 2011, was by the UKBA itself and was therefore not independent. It sets out what is expected of entry clearance managers in conducting reviews whereas the chief inspector’s findings show that, in many cases, those expectations are not met. The report argues that it is reasonable to substitute an internal review for the right of appeal in points-based system cases and emphasis is placed on the context of the new, more objective and transparent process of making decisions under the points-based system.
The points-based system has not resulted in an objective and transparent process as intended but even if it had, it would not be an argument for applying internal reviews to the entirely different process of deciding on family visits. There is no suggestion that family visit visas are to be decided on criteria in relation to which scope for subjective decision-making is removed. The defects of the internal review system would therefore be intensified if applied to family visit refusals.
The Labour Party made the restoration of appeal rights a manifesto commitment in 1997, and when it implemented that undertaking in 2000 my right honourable friend Simon Hughes said:
“The Conservative Government … abolished the right of those who had applied for visas to enter this country to appeal against rejection. That caused widespread disapproval, dissatisfaction and anger. Understandably, the Labour Opposition, like the Liberal Democrats, were committed to restoring the right of appeal”.—[Official Report, Commons, 20/11/00; col. 109.]
This feeling was shared on all sides of another place and of this House. The late Lord Newton of Braintree was among many who emphasised the importance of family members in the UK being able to attend an independent tribunal to address implicit or explicit allegations as to the integrity of the would-be visitor or the family members. My friend the late Earl Russell, in his inimitable way, related a 17th century anecdote to illustrate a point about family relationships and the noble Lord, Lord Cope of Berkeley, speaking from the Conservative Front Bench, criticised the restoration of appeal rights in family visit cases only on the grounds that fees were to be payable which would mean that there would not be many appeals.
Last Tuesday, the noble Lord, Lord McConnell of Glenscorrodale, drew attention to the latest report of the chief inspector of the Border Agency on visa applications. Mr Vine points out that on entry clearance decisions as a whole ECOs had not considered the evidence properly in 33% of cases, and that rose to 37% for Africa and to 50% for the region covering the Gulf, Iran and Pakistan. The poorest performing posts on the use of evidence were Abu Dhabi, Abuja, Moscow and New Delhi and these same posts were the worst on failure to seek initial information as well. Three of them were among the five worst posts on the retention of documentation. The Government say that a right of appeal is to be retained on race discrimination and/or human rights grounds against the refusal of a family visit visa. Section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002 permits as a ground of appeal that a decision is,
“not in accordance with the law”,
which includes a ground of race discrimination on an appeal, but unlike the specific race discrimination ground that had resided in Section 84(1)(b), it is only applicable when a full right of appeal is available. Reference to the Race Relations Act 1976 was removed from Section 84(1)(b) on 5 April 2011 by the Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011 and no substitute was included in its place. I hope that my noble kinsman, when he comes to reply, can give me an assurance that an amendment will be introduced to remedy this problem on Report.
In conclusion, the reasons advanced for Clause 24 are those given in the UKBA consultation document Family Migration: A Consultation in July 2011; namely, assertions about the use of new evidence in a sample of 363 determinations in family visit appeals that it had considered. ILPA put the following questions to the UK Border Agency regarding this sample:
“Of the allowed appeals, was the new evidence produced, evidence that is clearly required on the application form or website?”,
and:
“Of the allowed appeals, was any contact made by the entry clearance officer making the decision with the applicant to request that the evidence be supplied?”.
The UK Border Agency’s response to each of these questions was:
“The information requested was not collated when the sampling was carried out”.
Baroness Smith of Basildon
My Lords, I will speak to our Amendments 148AA and 155EA. These are probing amendments into what I think are very serious issues. The Minister will recall that I raised concerns about these matters at Second Reading. I listened with great care to what the noble Lord, Lord Avebury, had to say, and I fear I may duplicate some of his comments, but only where they are worth duplicating and I think it useful to your Lordships’ House.
Our amendments would delay the commencement of Clause 24 until the Independent Chief Inspector of Borders and Immigration has completed a report on entry clearance decision-making within the UK Border Agency for family visit visas, which retain the right of appeal. The Minister will recall that I drew some comparisons at Second Reading with the issues that had arisen where the right of appeal had already changed in other visa applications.
It is worth rehearsing some of the difficulties, delays and problems that we have seen with initial decision-making in family visitor visa decisions. In 2010-11, 38% of the appeals against family visitor visa decisions were successful—over a third of the decisions were overturned on appeal. The noble Lord previously said that that was because in many cases people had provided wrong information. I will come on to that point but I do not think it is relevant in many cases. This seems to be a systemic problem and the Government cannot address the problem of inaccurate and wrong decisions being made by trying to change the rules. By removing the right of appeal, you cannot sweep under the carpet the fact that so many decisions have been appealed successfully.
Family visitor visas are an important way for many British communities to preserve family and cultural links with other countries. The kinds of applications we are talking about are for family members to attend family occasions such as weddings and birthdays; there can be urgent cases, many with a compassionate element, such as needing a visa to visit a sick relative or even attend a funeral. These are not the kind of people who are going to bring vexatious appeals against the Government. Appeals are brought in these cases to right a wrong, to overturn a wrong decision.
It is worth listening to what the Independent Chief Inspector of Borders and Immigration has said on this issue. In 2011 he reported that in 33% of cases he reviewed, the entry clearance officer had not properly considered the evidence that was submitted. Why should that 33% of people who have not had their applications properly considered be forced to resubmit an application because of chronic administrative errors within the UK Border Agency? It is penalising those who have been refused through no fault of their own but through poor decision-making.
As I mentioned earlier, the Government argued that,
“63% of appeals are lost entirely because of new evidence introduced at the appeal stage”.
That comment was made by the Immigration Minister, Damian Green, when he gave evidence to the Home Affairs Select Committee. I again look back at what John Vine, the chief inspector, noted in his report: in the 16% of cases reviewed, applications had been refused on the basis of a failure to provide information of which the applicant could not have been aware at the time of making their application.
It is true that in many cases, submitting a new application is quicker than appealing a decision, but the Government have failed to address the fact that, when a decision is appealed it allows, particularly in those highly urgent and exceptional cases, Members of Parliament and advocates to intervene directly with the Home Office on their behalf and expedite decisions. If they do not know, or are not aware, as the noble Lord, Lord Avebury, said, what information is required before submitting the application, that is a poor reason for the Government to change the rules. The wrong information was submitted, and it should be very clear to applicants what that information should be.
When a wrong decision has been made, it is a matter of integrity that it should be addressed. The UK Border Agency should also consider when decisions have been wrongly made and address the problems within the organisation that has allowed that to happen. To remove appeal rights of applicants who have been wrongly refused because of Home Office errors is unfair. It also leaves applicants with no indication of how they should amend their application the second time around, and the possibility that the same errors or omissions could continue to be made. It also neglects the added burden of cost that many applicants face. The cost of an appeal is roughly the same as an application but the costs of making an application go beyond the fee. I am sure that the Minister and other noble Lords will be aware that family members travel hundreds of miles and cross borders to submit in person an application and the documents required. It is significant that when refusals are made on the basis of an allegation that an individual has made a false statement in the application, it can result in that individual being refused entry for up to 10 years. If there is no right of appeal it leaves no way to address the issue. Making another application cannot undo the fact that the individual has been banned for the next 10 years. That is a significant failing in the clause as it stands, particularly when we see how many errors are made in decision-making.
Most importantly, removing the full appeal rights removes pressure on the Home Office to improve the situation. We want a reduction in errors in decision-making. It is bad for the Home Office, and it is certainly bad for the applicant. I raised in a Question in your Lordship’s House not that long ago the report from Sir John Vine: A Comparative Inspection of the UK Border Agency Visa Sections that Process Applications Submitted in Africa. He looked at four areas. There was some good news and some improvements, but I found it fairly shocking. The most difficult part was when he said:
“Despite my making recommendations in previous inspections to help the Agency improve, I found that little progress had been made in a number of areas. This is especially frustrating considering the Agency has accepted the recommendations and yet I continue to identify the same issues”.
How frustrating is that for the chief inspector of the UK Borders Agency whose sole purpose is to want the agency to improve its decision-making? Yet, he is making the same recommendations; the agency agreed those recommendations and that there should be a plan to address the issues. He then has to make the same recommendations the next year and the year after that. He then said:
“In summary, I found performance varied significantly across the four posts inspected in the Africa region. I was disappointed to still find a clear need for improvement in the quality and consistency of decision making. I have made 12 recommendations, a number of which I have made before, in previous reports”.
It is very difficult to understand why this kind of measure is being brought in when we know that the decision-making is inadequate and not up to scratch.
There is another, slightly different side to this. Something caught my eye earlier today concerning the failings in visa controls and considerations. It was about not family visas but other visas. Mr Vine’s inquiry looked at 100 visa applications from Pakistani nationals and found that there were cases where entry was granted when it should not have been and cases where it was not granted where it should have been. Both are equally wrong and I am sure that that is an issue that the Minister wants to address.
I find it very difficult to understand why the Government want to remove the right of appeal for family visit visas when they know that the decision-making is inadequate, that many mistakes are made and that the consequences for those individuals are severe. The amendments that we are dealing with today are intended to find out how the Government intend to improve entry clearance decision-making within the UKBA and ensure that individuals are not unfairly penalised because of systemic failures if their full right of appeal is taken away. As things stand at the moment, significant harm is being caused to those individuals because of the quality of the decision-making.
Baroness Hamwee
My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.
There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.
Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by saying to my noble friend Lady Hamwee that I accept the seriousness of the points being made and I hope that I can deal with them in the course of this debate. I also noted what my noble kinsman Lord Avebury said about the right of appeal on race discrimination grounds, which I think is the subject of his next amendment. As it was my noble kinsman who wanted the amendments to be taken separately, I would prefer to deal with that issue when we come to Amendment 148B.
We have three amendments and a clause stand part debate in this group. My noble kinsman has tabled Amendment 148A and has given notice of his intention to oppose Clause 24, and the noble Baroness, Lady Smith, has tabled Amendments 148AA and 155EA.
As we are all aware, Clause 24 makes provision to remove the full right of appeal against refusal of visa applications to visit family members in the United Kingdom. The Government understand that a visit visa can help maintain family links: we granted some 370,000 family visit visas in 2011 and 1.26 million other visit visas in 2010-11. That is also why we issue, on application, longer validity multiple entry visit visas in some cases, which offer convenience to the family visitors who are granted them. The clause is not in any way about stopping people visiting their family members in the United Kingdom. The rules to qualify for entry are the same for both tourists and family visitors. Any family member who meets our immigration rules will be granted that visit visa.
Lord Rea
Before the Minister sits down, will he answer a simple question? When an appeal is refused under the new rules, he says that it will be open to the applicant to make a new application, benefiting perhaps from the reasons given for the asylum refusal. But that will surely add enormously to the load on the border control officers who are controlling applications for visas in the first place. Will that not give them a huge overload? Anyway, are there not rules that specify the length of time after the first application is refused before a second one can be made? What sort of period are we looking at? Is it six months, a year or two years? Is there a period at all?
Lord Henley
My Lords, we are finding that, with a large number of appeals, the point that they are appealing on is in effect new evidence that they did not put in their original application. We suggest that it is cheaper to make a new application than to appeal. It does not clog up the appeal system if they make a new application, bringing in that new evidence. Therefore, the appropriate process is to use the new application route rather than clog up the appeals system. That is why I was emphasising that, despite the original intentions of the system brought in by the Government of whom the noble Lord is such a distinguished supporter, it has clogged up the system in a manner that we do not think is appropriate. The new application would be a far simpler, cheaper and better way of dealing with these matters.
Lord Henley
A new application can be made immediately. That would be far quicker for the applicant than waiting for possibly eight months for the appeal to be dealt with. A new application can be dealt with within 15 days. That is a better deal for all involved, particularly if they are coming over for a family event such as a wedding. In eight months, the whole thing might be over: it would depend on how much advance notice they had for the wedding.
Baroness Hamwee
My Lords, as the Minister said, the fee for a new application is a little cheaper than that for an appeal. He quoted a figure for the savings that the measure would achieve. I have just had a look at the impact assessment—although I may not have the right piece of paper with me—which gives in narrative form an explanation of what is proposed, but I cannot find any figures in it for this particular clause.
The Minister may well not have the detail with him at the moment. If he does not, perhaps he could write to noble Lords to unpack that figure, which I think was £102 million, although I might have got that wrong. In any event, when it comes to the amount that the Government expect to save by this, I am having a little difficulty in putting all this together in a mathematical form.
Lord Henley
My Lords, impact assessments are always somewhat obscure documents, as my noble friend and others will well understand. I do not have the impact assessment in front of me at the moment but I think the figure I quoted was savings over 10 years of something like £103 million. My noble friend says £102 million, but what is £1 million between friends? The best I can do on this particular occasion is to offer to write to my noble friend with greater clarity about the impact assessment and what we reckon the savings will be. We think that there are very considerable savings to be made here and that the process is not working as it should or as it was originally intended because there are far many more appeals coming in. A new application would be a simpler way of processing these matters.
Baroness Hamwee
My Lords, it might help if I just say that it seems that an explanation for any savings may be with regard to the time that officers put into dealing with either an appeal or an application. That in itself raises issues. I make that point now in case the answer comes back simply in terms of figures, when there will need to be an explanation if we are all to understand. However, we all agree that the system is not working very well.
Lord Henley
My Lords, I am reminded that the figure I quoted originally was £107 million, so we are talking about a difference of £5 million between myself and my noble friend, which is real money. However, I still promise to write to my noble friend on these matters and to try to bring her greater clarity.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister seeks to reassure me and I wish that he could. However, unfortunately, he has not. There are a number of issues. If, as he points out, it would be quicker, cheaper and easier for everybody concerned—the Government and all the applicants—for there to be no appeals process, why does everybody not welcome this with open arms?
As I pointed out in my earlier comments and as was pointed out by the noble Lord, Lord Avebury, and the noble Baroness, Lady Hamwee, it would be quicker, cheaper and less onerous if so many wrong decisions were not made in the first place. I imagine that those appeals that were not upheld were much easier decisions to make if the application was turned down and the appeal rejected. I am very concerned about those where a wrong decision is made and the appeal is successful because of the wrong decision. I know the noble Lord says that in many cases it is because new information is provided, but it would be very simple to make it absolutely clear what information is required in the first place. That would make the whole application process much quicker and more efficient.
The other problem with making new applications is that there is no opportunity for advocacy or for people to make representations on an applicant’s behalf. I made the point earlier that if somebody is refused and the decision-maker says that they gave inaccurate or wrong information, they can be barred for 10 years. The Minister says they can apply next year and the year after, but in those circumstances they will not be able to apply for 10 years. Even though the decision may be based on inaccurate information, and the person who has been refused a family visitor visa has been told the information they gave was wrong and misleading, there is no opportunity to appeal that and they cannot make another application for 10 years. That seems to be a gap in the noble Lord’s reasoning.
I wonder whether he is dealing with this problem from the wrong end. If we deal with improving the quality of decision-making, in some cases by making it easier, and so more straightforward, for applicants to know what is required of them, we would see this logjam that he talks about removed. To try to deal with the logjam by merely removing the right to appeal does not seem to me to be the right way round.
I was surprised that he drew any comfort from the chief inspector’s report. I think that it is quite damning. Basically, he says, “I make these recommendations, people accept them, but it does not get any better”. Before the Government take an action such as this, they should seek significant changes and improvements in decision-making. I do not lay it all at the door of poor decision-making. However, he tells me that every decision is reviewed by a senior manager, so clearly something is wrong when so many appeals succeed despite that. Something in the process is going badly wrong.
I will not press my amendment today. I am grateful to the Minister for pointing out the deficiencies in my drafting but, despite his very brave attempts, I am not really reassured.
Lord Henley
My Lords, before my noble kinsman decides what to do with his amendment—obviously, it is his decision—I want to pick up one point. The noble Baroness says that an awful lot of appeals are the result of wrong decisions. I accept that some are the result of wrong decisions, but as she would accept, an awful lot are the result of the wrong information coming forward, and that is something far better dealt with by means of a new application. Obviously, we might have to look at how to ensure that people get the right information into their original application so that the correct decision can be made. That is a matter of making sure that we have the right procedures in place and I will certainly be prepared to look at that. However, I do not think that she should imply that all the problems are down to bad decision-making; an awful lot are the result of new information coming forward. That is why there are so many appeals.
Baroness Smith of Basildon
If the noble Lord reads Hansard and looks at my previous comments and at what I have just said, he will find that I acknowledge that sometimes a wrong decision is made because the right information is not supplied. Indeed, I quoted the chief inspector as saying that in 16% of the cases reviewed, applications had been refused on the basis of a failure to provide information, but the applicant was not aware of what information was required. I acknowledge that important point. If the Minister were to take that back to the UK Borders Agency and act on it, that would be an extremely positive step, so that all applicants are made fully aware at the time of application what information is required.
Lord Hussain
My Lords, may I raise one question? I live in a community where a lot of migration takes place and I can quote examples. However, I need some clarification from the Minister. On more than one occasion, applications from family visitors, who have visited Britain more than once, have been refused even though they have complied with the law and have done nothing against the law. They say, “Yes, we accept that the applicant has been to Britain in the past and that they have not broken any law, but things have changed and, on the balance of probabilities, we believe that they will not go back”. I wonder what sort of new information they will supply if they resubmit their application. The only answer I can see is a right of appeal, so that they can prove that they can fulfil all the requirements and guarantees needed to show that they will go back, as they have done in the past.
Lord Henley
My Lords, without knowing more about the sort of cases that my noble friend refers to, I do not think that I can respond to him at this stage. The more general point, and the reason for bringing this clause forward, is that we feel that many of the applications can be dealt with by a new application and so the process of a right of appeal is not the right way forward. We are bringing it into line with other parts of the immigration system. In the main, we have found that so many appeals have been on the basis of new information. This is a more appropriate way of dealing with it.
Lord Avebury
My Lords, I dread to think of how many occasions I have sat here and listened to Ministers from the Front Bench saying that they will make amends for the all the criticisms that have come from the chief inspectors of the UK Border Agency or their predecessors; yet on the next occasion we debate precisely the same thing. It is with some reluctance that one accepts the assurances that the Minister has given that the Government are going to sort out the UK Border Agency so that fewer false decisions are made. I am sure that he has been told by the officials that they have this matter in hand but the benefit of past experience shows us that we cannot rely on that.
In relation to the suggestion made by my noble friend Lady Hamwee, that there should be some mechanism whereby, if the entry certificate officer needs some further information that the applicant could not possibly have known would be required on his original application, that should not be the cause of a refusal but of a communication from the ECO to the applicant to say exactly what kind of information is needed and that that would be considered in making the decision. There is no such mechanism at the moment and I am not satisfied that the assurances the Minister has given, that he will look at the proposal, are sufficient. My suggestion is that we could perhaps think about this before Report and come back to it then, to hear further from the Minister about what progress he has been able to make on my noble friend Lady Hamwee’s suggestion.
Even so, there remains a problem: that the applicant has a black mark against them in the Home Office records, which may have deleterious effects on any further application that he makes. When he comes to make another visit and officers look up what happened in the past, they will see that he has had a refusal. In the case that I mentioned of Mrs N in Beirut, who made a number of visits to her husband in London, no problem was ever encountered. It was rather like the case cited by my noble friend Lord Hussain. Quite simply, they granted the entry certificate. She came to visit her husband in London and went back to Beirut afterwards, for the very simple reason that she had an 89-year-old mother there for whom she is the primary carer, as I explained. That was known—it must be on the files—yet on this occasion, after she has been from Beirut to London perhaps a dozen times without any problem, suddenly she was refused.
Mrs N’s solicitor advised her not only to put in a fresh application, which my noble friend thinks is the ultimate solution, but to appeal because she does not want a stain to appear on her record. That is not going to vanish. There is no way in which you can rub off a record of a refusal, except by means of an appeal. Although people may be able to get permission more quickly to come here by putting in a fresh application, as my noble friend says, that application will have to be considered in the light of the fact that there is a record of a refusal. It is less likely that that person will be able to come here in future. The solution that my noble friend has suggested is not the answer and I say again that we will have to return to this on Report, when I hope we can make some further progress on it. Meanwhile, I beg leave to withdraw the amendment.
Lord Avebury
“Immigration appeals: race discrimination grounds
In the Nationality, Immigration and Asylum Act 2002, in section 84(1)(b), after “Race Relations (Northern Ireland) Order 1997” insert “or relates to section 115 of the Equality Act 2010 in relation to the protected characteristic identified in section 9 of that Act”.”
Lord Avebury
My Lords, the specific race discrimination ground of appeal in immigration cases now relates only to Northern Ireland. The 2002 Act continues to allow an immigration judge to find an immigration decision to be unlawful by reason of race or other unlawful discrimination, because Section 84(1)(e) provides a ground of appeal,
“that the decision is otherwise not in accordance with the law”,
but only where he or she has jurisdiction to hear the appeal in the first place.
The importance of the specific race discrimination ground of appeal is that it is one of two statutory grounds that generally preserve an appeal right that would otherwise be precluded by the 2002 Act. Thus, in the various and complex sections restricting appeal rights in that Act, the following general formula is repeated several times: that the relevant restriction,
“does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c)”.
This general formula previously preserved the right of appeal against an immigration decision, where the would-be appellant sought to challenge the immigration decision on race discrimination or human rights grounds. This has particular relevance to Clause 24 of the Bill, by which it is intended to remove the right of appeal against the refusal of a family visit visa. The provisions that Clause 24 amends will continue to retain the general formula intended to preserve a right of appeal on race discrimination or human rights grounds. Preserving the right of appeal on those grounds is clearly intended, as is stated by paragraph 373 of the Explanatory Notes. It was also made clear on the UK Border Agency website when the Bill was first published, as well as in a more recent announcement on that website concerning changes to remove the right of appeal for aunts, uncles, nieces, nephews and cousins against a refusal of a family visit visa.
However, the omission of the relevant words in Section 84(1)(b) undermines all this. The general formula now preserves appeal rights only where the appeal is brought on human rights grounds in England and Wales or Scotland, and on both race discrimination and human rights grounds in Northern Ireland. The Immigration Law Practitioners’ Association has raised this with the Home Office, and it has been confirmed that this was not intended. ILPA informs us that the Home Office is looking at how best to remedy the omission, and we hope that it can be done while this Bill is in progress. Ideally, the Government will be able to say how and by when this omission is to be corrected in answer to this amendment, and we would then expect to see it implemented on Report.
The events that led to the inadvertent omission of the specific race discrimination ground of appeal highlight once again the notorious complexity of immigration law, including the highly complex statutory appeal provisions. We have just enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in the face of widespread concern both within and outside Parliament about the removal of legal aid in areas such as immigration, which, as the noble Lord, Lord Pannick, said on the last day of debate in the House of Lords before enactment,
“will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law”.—[Official Report, 25/4/12; col. 1797.]
If the Government cannot even foresee the consequences for the statutory immigration appeals scheme when they draft legislation with an impact on that scheme, they can hardly expect individuals without legal advice or representation to understand the rules and to know what appeal rights they still have, if any. I beg to move.
Lord Henley
My Lords, my noble kinsman has spotted something, and it will be suitable for me to intervene at this stage and save ourselves a debate. As he has explained, Amendment 148B is intended to reinstate a right of appeal against an immigration decision on race relations grounds. Such a right of appeal existed prior to the commencement of the Equality Act 2010, but many noble Lords will remember that the latter stages of that Act were rushed through rather fast in the run-up to the election, and that right was inadvertently removed by the consequential amendments made under that Act. That might encourage us to think more carefully about the wash-up process in the future because of the mistakes that can creep in.
The Government’s stated policy remains that there should be a right of appeal on race relations grounds, and we agree that this appeal right should be reinstated. My noble kinsman asked how we can do that. We do not apparently need primary legislation to rectify this problem as we could effect the necessary change through secondary legislation made under the Equality Act 2010, a point that has been recognised by the Immigration Law Practitioners’ Association in its briefing on this amendment.
I am happy to give a commitment that the problem will be rectified and to explore further over the summer —my noble kinsman will be aware that we have quite a few months before we get to Report—how best this might be achieved. In light of this reassurance, I hope that he will withdraw his amendment.
Lord Avebury
I am happy to withdraw the amendment on the basis of that assurance.
Lord Avebury
“Immigration appeals: asylum and humanitarian protection
In the Nationality, Immigration and Asylum Act 2002, in section 83(1)(b) omit the words from “Kingdom” to the end.”
Lord Avebury
I shall speak also to Amendment 148D. Section 83 of the Nationality, Immigration and Asylum Act 2002 currently provides that a person may appeal to the tribunal against the rejection of his asylum claim where,
“he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate)”.
This amendment would extend the right of appeal against refusal of asylum in any case where the Secretary of State had granted the person leave to enter or remain for whatever period. Asylum seekers who are not granted leave to enter or remain when refused asylum have a right of appeal under the provisions of Section 83(1), thus currently it is only asylum seekers who are granted leave to enter or remain for 12 months or less who are unable to appeal when refused asylum.
Where an asylum seeker is refused, there are various reasons why he or she might none the less be granted leave to enter or remain for a limited period. For example, a person refused asylum may be granted humanitarian protection because it is accepted that he or she is at risk of serious harm if returned to his or her country of origin, but it is not accepted that that harm is for a refugee convention reason—that is to say that the harm is not,
“for reasons of race, religion, nationality, membership of a particular social group or political opinion”—
or because it is accepted that his or her removal would constitute an unlawful interference with his or her private or family life. Grants of leave on either basis would normally be for more than 12 months. In these situations, Section 83 provides a right of appeal against the asylum refusal.
The group of asylum seekers most affected by the 12-month stipulation in Section 83(1)(b) is unaccompanied children. Unaccompanied children refused asylum are often granted discretionary leave on the basis that there are no adequate reception arrangements in their country of origin to which they could be returned. Discretionary leave granted to an unaccompanied child on this basis is granted for whichever is the shorter period of three years or until he or she is aged 17 and a half. Thus an unaccompanied child aged 16 and a half or over at the time of being refused asylum will not be granted discretionary leave of sufficient length to allow him or her to appeal against the refusal of asylum. He or she will have to wait until his or her discretionary leave is nearing its expiry and apply for an extension of the discretionary leave. If that extension is refused or granted for a period that when added to the period in the original grant comes to more than 12 months, he or she can appeal against the refusal of asylum.
This has serious implications for such a child. First, in many cases the UKBA does not decide an application for an extension of discretionary leave for many months, or sometimes years, after the application is made, so a child age 16 and a half when originally refused asylum may be well into adulthood before he or she is provided any opportunity of bringing an appeal against the refusal of asylum. Delay in establishing refugee status can cause substantial harm to the child’s welfare and development over and above the ongoing uncertainty as to the child’s longer term future. For example, children and young people with only discretionary leave to remain rather than refugee leave may have difficulty accessing further or higher education or accessing financial support for this purpose. Generally, unaccompanied children and young people awaiting a decision on their application for an extension of discretionary leave may have difficulties accessing a range of entitlements because, while in law they continue to have discretionary leave, the document by which that leave is given will show it to have expired.
Secondly, changes in circumstances as regards the child or his or her country of origin may mean it is more difficult or not possible to now succeed on appeal. This is because in an asylum appeal the issue for the immigration judge is not whether a person was a refugee when he or she originally claimed or was refused asylum, but whether the person is now at risk of persecution. For example, the child wrongly refused asylum but at risk of being recruited as a child soldier may be unable to establish his or her asylum claim by being denied a right of appeal until after he or she has ceased to be a child. Additionally, a child, like any other person, will normally be best able to recall events and give evidence in an appeal the closer in time the appeal is to those events.
Thirdly, provisions and guidance designed to protect a child’s interests in immigration procedures, including appeals, will be unavailable during procedures that take place after the child reaches adulthood. These provisions and guidance include judicial guidance on dealing with child applicants and witnesses, UK Border Agency guidance on dealing with children and Legal Services Commission guidance on availability of legal aid. The protections stipulate that particular care is needed in taking evidence from a child, that children are not to be detained and that a child should not be left without legal representation at appeal.
In the light of these considerations, the current provision acts contrary to the UK’s international and domestic obligations to safeguard and promote the welfare of children. It is contrary to the children’s best interests and hence to Article 3 of the 1989 UN Convention on the Rights of the Child. Given that the provision overwhelmingly acts to prejudice children, it is contrary to Article 2 of the convention as being discriminatory in practice on grounds of age and a person being a child.
I turn to Amendment 148D. Section 94 of the Nationality, Immigration and Asylum Act 2002 empowers the Secretary of State to prevent an asylum seeker or person making a human rights claim from exercising a right of appeal before his or her departure, voluntary or enforced, from the UK. The provision is often referred to as a non-suspensive appeals provision because ordinarily where an asylum or human rights claim was made by a person in the UK, the power to remove a person from the UK is suspended while he or she may bring or is pursuing an appeal.
When Section 94 was first debated by your Lordships in July 2002, the late Lord Archer of Sandwell asked:
“How many basic principles can be brought into contempt in 65 lines?”.
Having noted that succeeding on an asylum or human rights appeal after one has been removed from the UK may simply be too late, he cautioned:
“Once the claimant has passed out of the jurisdiction of the United Kingdom, we have no control over what happens to him”.
He also highlighted the great difficulties presented in trying to exercise one’s appeal from outside the country, including in particular where,
“the outcome may—usually does—depend on the assessment”,
by the immigration judge,
“of the applicant's evidence … and … to a substantial degree on seeing and hearing the witness”.—[Official Report, 23/7/02; cols. 344-45.]
The amendment removes the presumption of safety contained in Section 94(8) where the Secretary of State intends to remove the person to what she claims is a safe third country—not the person’s country of origin—and where she says the person will not suffer any human rights abuse and where she has issued a certificate under Section 94(7).
Baroness Smith of Basildon
My Lords, I, too, was sent a brief with the same information by the Immigration Law Practitioners’ Association, which briefed the noble Lord, Lord Avebury, on his amendments. There is a case here that is of interest. There is not much that I can add to what the noble Lord has said but I am interested to hear the Minister’s response, particularly to Amendment 148C. I am concerned about the arrangements for young people and children, particularly those aged under 16. My only comment is that I am willing to listen to the noble Lord’s response to those amendments.
Lord Henley
My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.
The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.
Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.
My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.
Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.
Lord Avebury
My Lords, I am grateful to my noble kinsman for what he has said about Amendment 148C. I look forward to hearing further from him, perhaps on Report, about the results of the policy review on the length of permission granted for a child and the effects of an appeal being heard after the child has reached the age of adulthood. I hope that I may take it, from what he said, that we will be able to have a more concrete idea of what the Government propose to do to remedy the situation before Report. If legislation is required to remedy it, we must not miss the opportunity presented by the Bill.
On Amendment 148D, the question of whether we need changes in the statute to cope with the cases that I have mentioned, where it was found that the presumption was not justified, is a matter on which I need to take further legal advice, so I will not pursue the matter any further at this point but may well return to it on Report. I beg leave to withdraw the amendment.
Lord Avebury
“Appeal in progress
In the Nationality, Immigration and Asylum Act 2002, in section 99(1), omit “96(1) or (2)”.”
Lord Avebury
My Lords, under Sections 96 to 99 of the Nationality, Immigration and Asylum Act 2002, the Secretary of State may issue a certificate causing a properly initiated and extant appeal before the First-tier Tribunal, Immigration and Asylum Chamber, or onward appeal against a decision of that chamber, to be summarily terminated. The cases dealt with in Sections 97 and 98 concern matters of national security or certain cases where the Secretary of State has certified that a person’s presence in the UK is, or would not be, conducive to the public good, and these amendments do not affect those provisions.
Section 96(1) and (2) concern situations where the Secretary of State asserts that the subject matter a person now relies upon could and should have been raised in previous appeal proceedings. However, the Secretary of State’s opportunity to make such an assertion and issue a certificate to exclude a right of appeal to the First-tier Tribunal is when she is making her decision in relation to the subject matter, not after she has rejected it and an appeal initiated. Indeed, Section 96 expressly recognises this. Section 96(7) states:
“A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued”.
Section 99 was commenced on 1 April 2003 by the Nationality, Immigration and Asylum Act (Commencement No. 4) Order. Section 96, however, was later revised and Section 96(7) inserted on 1 October 2004 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 1) Order 2004. However, when this revision was made, Section 99 was not amended so as to reflect the change introduced under the 2004 Act. The ineffective and erroneous part of Section 99, which the amendment seeks to remove, is another example highlighting the degree of complexity in the statutory immigration appeals provisions. I beg to move.
Baroness Smith of Basildon
My Lords, I can be very brief on this, as the noble Lord, Lord Avebury, explained his amendment in great detail. My understanding from the briefing that I received is that this proposal would be a modest tidying and simplification of what the Immigration Law Practitioners’ Association said was a highly complex statutory appeals process. On that basis, it appears to be a tidying-up amendment, but it would be helpful to know whether the Minister shares that view or whether he believes that it represents a significant change. My legal knowledge is not great enough, but I would like to hear the other side of it, and if it is just a simplification and tidying-up I hope that the Government would agree to it.
Lord Henley
The noble Baroness knows that my legal knowledge is equally limited but my understanding also is that this is a relatively simple tidying-up amendment, and I congratulate my noble kinsman on doing it. If I have understood him properly, he is trying to clarify that certifying a decision under Section 96 of the Nationality, Immigration and Asylum Act 2002 has no effect on any pending appeal. If that is correct, we would want to look at it. If he is willing to withdraw his amendment I am more than happy to consider the matter further and to report back to him in advance of the next stage. Because of the timing of this Bill we are in the very happy position of having some months, even with party conferences, between this stage and the next stage of the Bill—although, sadly, some of us might miss our own party conference because of the date of the next day in Committee on the Bill. We will look at this and if my noble kinsman is prepared to withdraw it, I will get back to him and see what we can do.
Lord Lester of Herne Hill
Perhaps I may ask the noble Lord a question. I have been following these debates as best I can. I have been at the Bar for a very long time. My wife is an immigration and asylum judge. I note that the Court of Appeal has begged the Government to codify and simplify the morass of unintelligible legislation which only my noble friend Lord Avebury truly understands. Is there any hope that once this Bill becomes law the Government will heed the court’s plea—to which I would add people such as my wife who, as a judge, has to interpret and apply this law—so that even if ordinary men and women cannot understand it, at least ordinary lawyers may be able to do so?
Lord Henley
My Lords, I would be the first to say to my noble friend that he is not an ordinary lawyer and nor is his wife—they are both very eminent lawyers. If they say it is a morass of unintelligible law obviously it must be. However, I am not sure it is as unintelligible as he claims. Obviously, we will look at this. As with all law, if consolidation can make matters simpler it is something that can be looked at. If it is a matter for departments—in this case the Home Office—we must look at it. As my noble friend will be aware, finding time for any legislative changes is always difficult.
Lord Deben
I hope that my noble friend will accept that it is not just a matter of making the law intelligible for lawyers. The people who suffer—if I may put it like that—under the immigration laws are people who ought to feel, at least as far as they can, that they have been dealt with fairly. We have had examples already this afternoon of situations that are so complex that it would be very hard to explain to one of these people that they have been dealt with fairly. If they leave this country I would be much happier if they said, “Of course, I ought to have got in but actually I was dealt with fairly”, than if they go away feeling, “I really don’t know why the blazes I wasn’t allowed in”. It seems to me hugely important that we get this formulation right.
Lord Henley
My noble friend is absolutely correct. It is always difficult to make sure that any law is understandable to the ordinary man or woman in the street or the ordinary man or woman on the Clapham omnibus. It is obviously, as our noble friend Lord Lester of Herne Hill put it, sometimes difficult to make the law intelligible to even the extraordinary lawyers let alone the ordinary ones. We try to make sure that it is as intelligible as possible but, as I think my noble friend Lord Lester is aware, even with some of the simplest laws one lawyer will take one view and another will take another view. These matters are often argued in the courts at some considerable length. We try to do what we can to make things as simple as possible. I hoped that this would be a very short amendment, and I hope that the reassurance that I offered to my noble kinsman will be sufficient for him to withdraw the amendment.
Lord Avebury
The important thing is that my noble kinsman has agreed to tidy up Section 99 of the Nationality, Immigration and Asylum Act 2002. I am most grateful to him for that assurance and beg leave to withdraw the amendment.
Lord Avebury
“(4) This section does not apply if—
(a) the person concerned is stateless, (b) the person concerned has previously made an asylum claim or a human rights claim and been granted leave on that basis, or(c) the person concerned asserts in his or her grounds of appeal an asylum claim or a human rights claim.”
Lord Avebury
My Lords, in moving Amendment 148F, I will speak also to Amendments 148G, 149A and Clause 25 stand part.
Clause 25 is unjust and oppressive. It is contrary to the principles underpinning a fair trial. It applies where the Secretary of State cancels or curtails a person’s leave to be in the UK while that person is outside the UK, using the power in Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002. If the Secretary of State certifies that the decision is or was taken wholly or partly on the grounds that it is no longer conducive to the public good for the person to have leave to enter or remain in the United Kingdom, the person will be precluded from exercising any right of appeal from within the UK. Even when the person has returned to the UK and launched an appeal before the certificate is issued, Clause 25(4) means that when the Secretary of State issues the certificate, the appeal will lapse and the person will be excluded from any right of appeal until he or she has again left the UK.
That persons are outside the UK when their leave is cancelled is not an unhappy accident; it is a result of the policy of waiting until a person is outside the country to serve the decision to cancel their leave. A person whose leave is cancelled is normally entitled to an in-country appeal against the decision to take away their leave, as well as the continuation of their leave on the same terms and conditions during the period within which an appeal can be brought and, if they do appeal, while the appeal is pending. The Home Office took the view that a person who was outside the country at the time when the leave was cancelled was not entitled to an in-country appeal. The courts held that as a matter of statutory construction, a person’s leave continues on the same terms and conditions during the 10-day period within which an in-country appeal can be brought and that they must be given the opportunity to return to the UK to launch the appeal within this time limit. If the person does not take that opportunity, they do not have an in-country right of appeal, but if they do, they have such a right and their leave continues until that appeal is finally determined. It is this ruling that Clause 25 would reverse.
Why should the Secretary of State use the information she holds about a person’s whereabouts to cancel their leave when they are out of the country and thus dictate whether or not they have an in-country right of appeal? That one party to litigation can control whether the other party has an in-country right of appeal offends against the principles of fairness. Why should one person have an in-country right of appeal and another, who has received the very same immigration decision, not do so just because one of them happened to have left the UK for a few days at the time the decision was served? There is no rational basis for the differential treatment.
The case of MK illustrates the oppressive nature of Clause 25. He was a recognised refugee and lived in the UK for several years with his wife and daughters. A European arrest warrant was issued for his arrest in connection with terrorism-related activities. Extradition to Italy was sought. His challenge to extradition failed. It was accepted in the course of the extradition proceedings that he was at risk of torture in Tunisia, his country of nationality. No real risk was seen that Italy would refoule him to Tunisia. MK’s wife and daughters, his dependants, remained at home in the UK.
MK was tried in Italy and acquitted of all charges except one, relating to the procurement of a false travel document, which all agreed did not relate to terrorist activities. He was sentenced to 12 months’ imprisonment but had already served that time on remand. Nevertheless, he continued to be held in immigration detention in Italy against his return to the country of his nationality, Tunisia, because a request was immediately made by the Italian police for his expulsion there. What had been considered unthinkable by the court in the UK extradition hearings was actually happening.
MK told the Italian authorities that he was a refugee and they took steps to determine whether he could be returned to the UK, his country of refuge. Meanwhile, the European Court of Human Rights intervened at MK’s request, indicating to Italy that under rule 39 of the rules of court he should not be returned to Tunisia. Seven days later, the Secretary of State wrote to MK’s solicitors in the UK that she had decided to revoke his refugee status and had also decided to cancel his indefinite leave to remain on the grounds that his exclusion from the UK would be conducive to the public good. MK’s solicitors lodged an appeal within the time limits applicable. It was argued by the Secretary of State that she was under no obligation to facilitate his return so that he could exercise an in-country right of appeal. The judge disagreed, concluding that the proper construction of Section 3D of the Immigration Act 1971 was that leave was extended for the 10 days that would enable the individual wishing to do so to make arrangements to return to the UK to pursue the appeal against the cancellation.
MK’s case is chilling but it is far from as bad as it could be. He knew of the decisions taken against him. They were not simply sitting on the mat undiscovered but served on him as a matter of law, which provides that a decision is deemed to be served two days after delivery to a person’s last known address. He had at all times the benefit of lawyers on the record ready to act in the UK, overseas and at the level of the European Court of Human Rights to protect him. He had challenged his extradition in the UK prior to its execution and thus had findings of fact as to the risk of torture in Tunisia. He was extradited to a country that is party to the European Convention on Human Rights, being thus able to benefit from an intervention by the European Court of Human Rights, designed to prevent onward refoulement from Italy.
MK lodged an appeal before the Special Immigration Appeals Commission, and also had a claim involving asylum matters, on both of which grounds, even after the coming into effect of the LASPO Act 2012, he would continue to be eligible for legal aid. It is not difficult to imagine cases to which Clause 25 will apply when the facts are very different and the risks enormously increased.
In MK, the Secretary of State accepted that there are advantages in being present in the UK to pursue an appeal. The Court of Appeal in that case described the right to an in-country appeal as “valuable”. It is difficult to pursue an appeal that turns on your character when you cannot appear in person before the court. It is difficult to find and work with legal representatives to bring an appeal if you are outside the UK and particularly, as was the case with MK, you are not in your country of nationality but stranded in a third country. It can be costly. Under the LASPO Act those who come before the SIAC or who claim asylum continue to be eligible for legal aid for their appeal, but those who are heard before ordinary tribunals and who make no claim for asylum will not.
If a person does return to the UK to appeal, they submit to the UK’s powers. They can be prosecuted for any criminal offence they have committed. The Home Secretary loses none of her powers of administrative detention under the immigration Acts. The person gains the advantage of continuing leave to be in the UK but at a price. The only reason for wanting to be in the UK to challenge the decision is that a person thinks that they have a chance of winning.
On Amendment 148F, I draw noble Lords’ attention to the concerns expressed by the UNHCR. It has exercised its good offices for many persons recognised as refugees by the UK but who, having left the country temporarily for personal reasons, found themselves unable to return here. They can turn only to us, as it was the UK that granted them international protection. The UNHCR says that if they are now to be deprived of the right to return to the UK to challenge a decision to cancel or curtail their leave to enter or remain in the UK, this would increase their vulnerability and leave them at a risk of refoulement. Amendment 148F addresses this concern by disapplying Clause 25 to stateless persons, refugees and persons granted humanitarian protection, and persons who challenge the cancellation of their leave on the basis that it would breach their rights under the UN convention relating to the status of refugees.
The UNHCR refers specifically to new Section 97B or the NIA Act, which deprives a person of his normal in-country right of appeal if the Secretary of State deems him to be a person whose presence in the UK is not conducive to the public good. The 1951 convention and its 1967 protocol list exhaustively the means by which a person can have their refugee status abrogated, and these do not include the procedure of the kind specified in proposed new Section 97B. The UNHCR says that a UK refugee labelled as “non-conducive to the public good” while he is out of the country should be able to return here and challenge the decision before the courts. The same principle should apply to stateless persons. The reduction, if not eradication, of statelessness is a shared responsibility of states. As was demonstrated at a conference to mark the 50th anniversary of the Convention on the Reduction of Statelessness organised jointly by the UNHCR and the Parliamentary Human Rights Group last December, the UK has effectively assumed responsibility for many different stateless communities, such as the Kuwaiti Bidoon, altogether numbering thousands of people, by granting them leave to remain and ultimately, after a lapse of years, UK citizenship.
Baroness Smith of Basildon
My Lords, I have a copy of the briefing that was sent to the noble Lord, Lord Avebury, and I have had the opportunity to read through what is quite a lengthy and complex explanation as he has been speaking, which has been helpful. Therefore, I do not want to repeat the arguments that he has made.
I do have some questions, although I do not know whether the noble Lord will be able to respond. I suspect that the noble Lord, Lord Avebury, will withdraw his amendment, possibly bringing it back on Report depending on the Minister’s answer. However, I have a few questions, as I am uncertain about some of the provisions in the clause and in the amendment, and it would be helpful if the noble Lord could address them. I am quite happy to have the response in writing.
From the briefing—I am sure I am not the only Member of the Committee to have received the same briefing on the amendments of the noble Lord, Lord Avebury—there is an implication regarding the circumstances under which somebody’s leave to remain will be cancelled while they are out of the country. I should be interested to hear from the Minister the criteria for cancelling somebody’s leave to remain while they are out of the country. Is this purely an administrative decision or, as is implied, is it almost the case that the Home Secretary is lying in wait, wanting to cancel leave to remain and waiting until a person leaves the country before doing so? It would be helpful to have some information on that. What proportion of cancelled leave to remain is taken when somebody is out of the country, as opposed to somebody being in-country?
Finally—we have had a very full explanation of the amendments—the legislation refers to the decision on removing the right to remain as being,
“taken wholly or partly on the ground that it is no longer conducive to the public good”,
for the person to have that leave. Is there a definition of “public good”? Is there a definition of when there is no longer that public good and the leave to remain is withdrawn? My concerns are about people being treated fairly and that there is no presumption that, because somebody leaves the country—well, I will come back to that. However, there must not be many of these cases. It would be interesting to know what proportion of cancelled leave to remain relates to people out of the country as opposed to people who are in-country.
Lord Judd
My Lords, the noble Lord, Lord Avebury, is absolutely right to put down the amendment. I am glad he drew attention to the comments by UNHCR, because UNHCR has immense responsibilities on behalf of the international community and its very serious considerations are sometimes treated too lightly.
Wrapped up in this issue is something on which I dwelt at Second Reading: concern about the division between what I would call administrative law and a real search for justice. In the fraught area of migration in general and the more difficult areas of asylum and the rest in particular, where all kinds of pressures and real dangers operate for the people concerned, it is most important to be certain that the balance remains on the side of justice. I would be grateful for the Minister’s considered view on whether this priority for justice—as distinct from a self-evident rationalisation of what may be convenient within political circles—can be pursued. The individual concerned is much more vulnerable when they are abroad. As the noble Lord has said, it is much more complex, challenging and difficult to mount an appeal from abroad. Can we really ensure that justice prevails if we have this provision? Should someone who has a right to appeal not have the right to pursue it here, where they can put their case fully before the courts and be tested in depth by them on their position and where there is an opportunity for others who may have a perspective on a case to bring their views and judgments into the deliberations that are taking place?
I hope the Minister will forgive me for saying that I am profoundly worried about this and would like his assurance that he is equally worried and is looking to make sure that, in this area, it is justice and not administrative convenience—whatever the apparent logical reasons for this administrative convenience—that has pride of place.
Lord Henley
My Lords, we are speaking to my noble kinsman’s Amendment 148F, to which is attached his Motion relating to whether Clause 25 should stand part of the Bill, his new Amendment 149A and Amendment 149 in my name and his—which my noble kinsman seemed to think he got down first. I presumed I had got it down first, because my name is at the top of the list. However, we will not argue about that point because I presume that my noble kinsman is grateful for the fact that we have both come to the same conclusion on that, and I will deal with it in due course.
I say to the noble Baroness, Lady Smith, that I have also seen the briefing from the Immigration Law Practitioners’ Association on these amendments and others. I will therefore, I hope, address most of the points that have been put forward by noble Lords on these matters in my response. I will deal with the questions that she has raised and those put by the noble Lord, Lord Judd. Obviously, again—because I presume my noble kinsman is not going to press these amendments, other than government Amendment 149 —we can come back to this on Report. The noble Baroness is making signs of a writing nature at me. I will, of course, write to her in due course; I thought that she was asking for the bill—but not this Bill.
I will first set out what we think Clause 25 does and then say something about the amendments as appropriate. Clause 25 addresses the current anomaly in legislation that allows an individual to return here to appeal a decision to cancel leave, despite being excluded by the Secretary of State—that is, my right honourable friend the Home Secretary—from the United Kingdom. Exclusion is obviously a key tool in tackling those who seek to cause harm to the United Kingdom; we have to remember my right honourable friend’s key and important role in the safety of the kingdom. Exclusion is used to tackle a range of conduct, including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that, once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion and the accompanying appeal right it brings.
Of course, any such decision by my right honourable friend should be open to challenge and review by the courts. However, the Government believe that, given the nature of these cases, it is—despite what the noble Lord, Lord Judd, was saying—wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom.
Clause 25 therefore seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The effect of that is that, upon certification, where the individual is outside the United Kingdom at the time of the decision, the in-country right of appeal under Section 92 of the 2002 Act no longer applies to such a decision and is replaced by an appeal from outside the United Kingdom only.
We accept that the power to remove appeal rights from the UK to abroad must be reserved for the highest-harm cases; this is obviously not something that can be done on a whim. This is why we have restricted such a change to individuals whose presence in the UK is certified by the Secretary of State to be non-conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of the decision.
Government Amendment 149, which is also in the name of my noble kinsman, seeks to remove subsection (4) of Clause 25. My noble kinsman has identified an issue of concern, which we want to address with our amendment. Subsection (4) would result in the lapsing of appeals against a cancellation of leave which are certified under the new certification power. These individuals will be left without any appeal right. That is not our intention. The intention of subsection (4) was to provide for an initial in-country right of appeal to lapse in the event that the decision to cancel leave was taken before the exclusion decision. However, as drafted, subsection (4) would cause all appeal rights to lapse. Removing subsection (4) ensures that all cases falling within the provisions of Clause 25 will have an out-of-country right of appeal against the decision to cancel leave.
Lord Avebury
My Lords, we will not quarrel about the priority of tabling subsection (4) and I express my gratitude to my noble kinsman for agreeing that that provision should be deleted. With regard to the question of the noble Baroness, Lady Smith of Basildon, about the criteria for declaring a person non-conducive to the public good, of course they do not have to be stated. It is the Secretary of State’s right to make such a declaration without explanation and no appeal can be mounted against that because the individual concerned has no knowledge of the reasons why that order was made in the first place. The power to declare somebody non-conducive to the public good is a very draconian power and it is a pity we have to invoke it without giving the target any legal right of challenge.
On Amendment 148F, I am not sure that my noble kinsman fully addressed the concerns that were expressed by the UNHCR, which, I agree with the noble Lord, Lord Judd, have to be taken very seriously indeed, because they are the guardians of the people who are concerned by this amendment. As the noble Lord suggested, we will probably have to return to this matter on Report. Meanwhile, I beg leave to withdraw the amendment.
Lord Henley
Lord Avebury
“Immigration and nationality appeals from the Upper Tribunal
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (right of appeal to Court of Appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”
Lord Avebury
My Lords, in moving Amendment 149B, I shall also discuss Amendment 149C. These are alternative amendments reducing the impact of the additional and highly restrictive requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal. This additional requirement is referred to as the “second-tier appeals test”. The second of the two alternatives I have tabled is narrower, removing this test in asylum and human rights appeals but not other immigration appeals.
The second-tier appeals test was introduced by Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 for certain appeals from the Upper Tribunal to the Court of Appeal. During the passage of the Borders, Citizenship and Immigration Bill in 2009, your Lordships voted through amendments to prevent the test applying to immigration and nationality appeals. This amendment derives from the wording of the amendment originally tabled by my noble friend Lord Lester of Herne Hill, QC, the noble Lord, Lord Pannick, QC, and the noble and learned Lord, Lord Lloyd of Berwick, and subsequently adopted by my noble friend Lord Thomas of Gresford and the late Lord Kingsland as part of a wider amendment concerning the Upper Tribunal. The Joint Committee on Human Rights had concurred with the legal opinion of Sir Richard Buxton, a recently retired Lord Justice of Appeal in the Court of Appeal, that the introduction of such restrictions might not be compatible with the UK’s international obligations.
The same considerations apply now as they did then, and there is a new factor. The increased rotation of judges under the Crime and Courts Bill will mean that there are more judges in the Upper Tribunal who are not immersed in these cases making asylum and immigration decisions, and they will be without the supervision of the Court of Appeal if the clause is unamended. At the moment, we continue to see the higher courts engaged on these issues. There are some poor tribunal decisions but, to be fair, this is an incredibly complex, difficult and fast-moving area of the law. The tribunal judges sitting from time to time in the immigration and asylum chambers of the tribunal may be excellent tribunal judges. However, they are not infallible, and the effect of the LASPO Act 2012, whether directly, in immigration, or indirectly, in asylum, will be that more appellants are unrepresented.
Among the concerns expressed in 2009 was the impact of the second-tier appeals test in potentially excluding appeals to the Court of Appeal where the individuals faced removal in breach of the refugee convention and their human rights as a result of errors of law by the tribunal. Ministers gave assurances in both Houses that these sorts of cases would be the ones that could be expected to meet the test. Phil Woolas said,
“the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal”.—[Official Report, Commons, 14/7/09; col. 210.]
There were other soothing comments, of which I will cite only one, made by the current Immigration Minister, Damian Green, who said:
“The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office”.—[Official Report, Commons, 14/07/09; col. 212.]
Those assurances have proved to be ephemeral following the judgment of the Court of Appeal in the case of PR (Sri Lanka). The Court of Appeal considered the ministerial assurances given in 2009, concluding that,
“it would be wrong in principle”,
to be constrained by those assurances and, in applying the second-tier appeals test, refused permission to appeal in each of the three asylum cases before the court. In one of those cases the appellant had been detained and tortured in Sri Lanka. Applying the test, the Court of Appeal concluded:
“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as to require the attention of the Court of Appeal”.
In another of the three cases, the judge identified an error of law in the failure of the tribunals below to correctly apply country guidance in respect of Zimbabwe asylum claims, but concluded that the test none the less precluded any appeal to the court. In the last of the three cases, Lord Justice Pitchford found the reasoning of the tribunals below to be, “obscure and contradictory” and such as to give rise to a real prospect of success on the appeal if permission had been granted.
In the case of JD (Congo), however, the Court of Appeal granted JD permission to appeal on the basis that there was an error of law in the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law, but the UT’s criticisms of the FTT’s decision amount to no more than a disagreement as to the proportionality of removal. The consequences of removal for JD and his partner were acknowledged to be very severe.
Taken together, these two judgments show that asylum and other human rights cases are neither exempt from the test, nor grounds in themselves to meet the test. That an error could lead to a person being returned to a country where he or she may be tortured will not necessarily mean that the test is met, as in the case of PR (Sri Lanka).
There are other significant conclusions to be drawn from these cases, as the Immigration Law Practitioners’ Association emphasised in its briefing for your Lordships on these amendments. I hope that my noble kinsman has had an opportunity of considering them carefully in making up his mind as to how to respond this afternoon.
In conclusion, leaving aside all the complexities of the second-tier appeals test, which have preoccupied the Court of Appeal, it has been shown that without Amendment 149B, or at least Amendment 149C, we shall be in breach of our obligations under both the refugee convention and the ECHR and that we have been warned by no less an authority than the UNHCR itself. I beg to move.
Baroness Smith of Basildon
My Lords, we are again grateful to the noble Lord, Lord Avebury, for the detail with which he explained his amendment. I think that these are amendments drafted by the Immigration Law Practitioners’ Association. As I understand the noble Lord, they are alternative amendments. The first removes the requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal: that is known as the second-tier appeals test. The second, if I understand it correctly, is a lesser amendment and would apply to all immigration and nationality appeals concerning asylum and human rights. The noble Lord indicates that I do understand correctly.
The noble Lord referred to the impact the second-tier appeals test has had and I would like to hear the response of the noble Baroness, Lady Northover. There were some serious points raised by the noble Lord, Lord Avebury. If the Government are opposing the amendment, we need to understand their case for doing so, including their views on the impact this would have if implemented and the reasons and evidence used to justify holding those views. It would be helpful to hear from the noble Baroness. The noble Lord, Lord Avebury, has made a detailed and interesting case and there must be some justification if the Government are not going to accept the amendments.
Baroness Northover
My Lords, Amendment 149B, tabled by my noble friend Lord Avebury, seeks to remove immigration and nationality appeals from the provisions in Section 13(6) of the Tribunals, Courts and Enforcement Act 2007. Similarly, Amendment 149C seeks to remove a narrower class of appeals—those which relate to the refugee convention or the European Convention on Human Rights—from the provisions in that section. Section 13(6) of the 2007 Act enables the Lord Chancellor to set out, by order, the test which applications have to meet for permission to appeal to the Court of Appeal from the Upper Tribunal. That order-making power has been exercised so that where a party seeks permission to appeal on a point of law against a decision of the Upper Tribunal, the second-tier appeals test will be applied, as noble Lords have said. That test requires that in order to grant permission, the Upper Tribunal or Court of Appeal has to consider that the proposed appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear the appeal.
The Government, like the courts themselves, fully appreciate the gravity of the subject of these appeals. Amendment 149C is concerned with appeals of the most serious kind, where the claim may be that if the appellant is returned home they may face torture or even death. Such cases undoubtedly deserve what has been called anxious scrutiny. In the Government’s view, that is what the system currently provides. At present, if a person makes a claim to asylum in the United Kingdom, for example, and that claim is rejected, he or she can appeal to the First-tier Tribunal. If that tribunal dismisses the appeal, there is a right of appeal to the Upper Tribunal. Alternatively, if the appeal is allowed, the UK Border Agency may appeal to the Upper Tribunal.
Both the First-tier Tribunal and the Upper Tribunal are composed of judges who are experts in this most sensitive of subjects. Therefore, if the Upper Tribunal rejects the appeal, it seems right to the Government that the test to take the matter to a third judicial body should be high. The courts have been clear that there is no case for saying that the UK would be in breach of its international obligations if appeals from the Upper Tribunal are available only in these circumstances. At present, all appeals from the various jurisdictions of the Upper Tribunal to the Court of Appeal are considered under the second-tier appeals test. That same test, under the Access to Justice Act 1999, also applies where there is an appeal against a decision of the High Court and where the latter was acting in its appellate capacity.
The Government believe that the same level of consideration should be given to all types of appeals, even to the sorts of cases with which Amendment 149C is concerned. One reason for this is that not all claims which are made are substantiated when they are put to the test. The second-tier appeals test gives judges appropriate control over the cases that reach the Court of Appeal. Removing this test could cause the Court of Appeal to be inundated with cases that may not justify their consideration. This would cause delays in the provision of justice for the whole range of decisions that are brought to the Court of Appeal and put further pressure on the judicial resources available to that court.
The courts have made a number of important judgments recently that help to clarify the application of the test for cases seeking permission to appeal to the Court of Appeal in the immigration and asylum context. For instance, if a person maintains in their application for permission to appeal that they will be persecuted if they are returned home, that will be a matter which the Upper Tribunal can consider in determining whether the “some other compelling reason” limb of Section 13(6), is met in reference to the second-tier appeals test. If it refuses permission, it is open to the appellant to apply direct to the Court of Appeal for permission.
There is no doubt that the class of cases dealt with by Amendment 149C can be both complex and of the utmost importance. It is our belief that the current structure, including applying the second-tier appeals test in appeals from the Upper Tribunal to the Court of Appeal, is the right one. That was of course the position of those who are now the Opposition when they were in government, as they argued the case then. As we consider that the case is not made out to change the test for the most serious kinds of cases—and as we also heard the other day from the noble and learned Lord, Lord Woolf, in defence of the Upper Tribunal’s track record in what has happened since this was debated a few years back—it follows that we do not accept that that test should be removed for the wider category of cases covered by Amendment 149B. I therefore urge my noble friend to withdraw this amendment.
Lord Avebury
I cannot say that I am not disappointed by that reply, because, as I said initially, there have been cases where people at very serious risk of torture have not been allowed to appeal to the Court of Appeal. For example, in the case that I mentioned of PR (Sri Lanka), the individual had been tortured in Sri Lanka and that was acknowledged by the courts but not deemed to be sufficient reason for the second-tier appeal test to have been satisfied. There have been conflicting decisions by the courts on the second-tier appeal. The only safe thing would be to ensure that where considerations of human rights are involved, as they were in the case of PR, the right of appeal to the Upper Court should be retained and the second-tier appeal test should be modified in the manner that I suggested. However, since my noble friend has suggested that we defer this matter until Report—
Baroness Northover
Perhaps I might point out to my noble friend that it is not the case that the second-tier appeals test does not allow for materially wrong decisions to be challenged by the Court of Appeal and that in the JD (Congo) case, three of the four appellants seeking permission were granted it. The immigration and asylum chambers of the First-tier Tribunal and the Upper Tribunal have been set up specifically to deal with these kinds of matters. My noble friend mentioned the complexity and sensitivity of these kinds of cases, and I should have answered by addressing that point.
Lord Avebury
I mentioned the case of JD (Congo) in my first speech—I have it in front of me—and I accept that in that case, the second-tier appeals test was found to have been met. However, there are other cases in which the circumstances were equally compelling and where that test has not been met. It was in the hope that we would clear up that ambiguity in how the second-tier appeals test is interpreted that I tabled my amendment. As I was about to say, we will have to reflect on this and perhaps come back to it on Report. Meanwhile, I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, in the clause that my amendment seeks to address the Government are proposing to extend vastly the powers of the UK Border Agency’s customs and immigration officers. I do not necessarily oppose this in principle. We have to understand the very challenging nature of the work undertaken by border control. The nature of international and global threats is constantly changing and we have to pay tribute to the immigration officers. They have a difficult job, they work in a challenging environment, and they have suffered cuts to their numbers in the last couple of years. However, we need to look at two things.
First, such an extension of powers would need to be properly justified and explained to your Lordships’ House. Secondly, we need to ensure that those exercising those powers have the necessary skills, rank, and remit, in order to ensure public confidence in the UK Border Agency as well as confidence within it. Also, is it up to it? I do not in any way mean the individual border officers, but rather whether they have the resources, training and capacity to undertake those roles.
Clause 26 extends a number of powers to immigration officers, both under the Regulation of Investigatory Powers Act and the Proceeds of Crime Act. Those powers are significant: the power to authorise the use of covert surveillance—“intrusive surveillance”, according to the Bill—and property interference such as wiretapping and installation of listening devices, as well as powers to authorise confiscation and detained cash and money-laundering investigations. These are serious new powers to give to immigration officers. They are currently only authorised by senior officers, and they are exercised by experienced and specialised professionals. Our amendments seek to ensure that if those powers are to be extended to immigration officers, they will be exercised with the same level of expertise and seniority.
When I first looked at the Bill it seemed to contain very wide-ranging powers, and there is a case for the Government to justify those. However, I looked at the Explanatory Notes, and the amendments seek to put on the face of the Bill what is in them. The Explanatory Notes are very helpful in this regard, because they make clear—I refer to page 64 and paragraph 380 in particular—that the intrusive surveillance available under RIPA should only be extended to officers working within the criminal and financial investigation teams. The paragraph says:
“The purpose of this amendment”—
which we are talking about, and which is in the clause—
“is to provide for immigration officers working in Criminal and Financial Investigation (‘CFI’) teams in the UK Border Agency … to be able to apply to exercise property interference powers equivalent to those already used by customs officials”.
It cites the Act and legislation under which they can use them, and states that:
“CFI teams have responsibility for investigating smuggling of drugs, firearms and weapons and organised immigration and customs crimes”.
If, as I understand from the Explanatory Notes, the Government intend these powers to be used only in the specific context of criminal and financial investigation by immigration officers, then it would be helpful to state that in the Bill and be very clear about it, rather than allowing the scope—as seems to be the case at the moment in this clause—for any immigration officer to exercise those powers. I am concerned about whether training and support could be available to all immigration officers, and whether it would be for all staff or only for those above a certain rank. That gives me some cause for concern, because if all immigration officers had that power, there is then the understanding that any immigration officer could exercise that power, even without the training or the appropriate rank or experience. What is in the Explanatory Notes is therefore better than what is in the Bill, though that may be an oversight in drafting.
Amendments 149CB and 153B, which follow Amendment 149CA, are intended to probe the Government’s justification for these highly specialised powers. These probing amendments remove Clause 26(4) and (5) and paragraphs 14 to 39 of Schedule 14, which extend to the UK Border Agency’s chief operating officer the ability to authorise immigration officers’ powers of investigation into confiscation, detained cash and money-laundering under the Proceeds of Crime Act. At present, the only individuals who can exercise those powers are accredited financial investigators, police constables or Customs officials, and in the case of confiscation investigations only SOCA officers—although SOCA has now been absorbed into the National Crime Agency. Notwithstanding police constables, all these individuals work within the specific field of serious financial and economic crime. I assume that once the National Crime Agency is up and running and fully established, it will have responsibility for those crimes.
The Government need to explain and justify for what purposes immigration officers also need such powers. What will be the relationship between the immigration officers who have this power and the National Crime Agency? Earlier clauses in the Bill refer to the relationship between the National Crime Agency and local police forces, and the powers of notification. If immigration officers are given new powers, there should be the same kind of co-operation and information-sharing between immigration officers, who have such powers, and the National Crime Agency, otherwise there will be a gap to fall through; both groups could end up investigating similar crimes or there could be an overlap of crimes. It would be helpful if the Government could clearly explain for what purposes immigration officers need these powers, and why, with the existing powers they have, there could not be co-operation with the National Crime Agency.
Paragraph 381 in the Explanatory Notes says that:
“At present, the UKBA is able to authorise applications from immigration officers investigating serious organised immigration for directed surveillance and Covert Human Intelligence Sources … and the ‘senior authorising officer’ can authorise applications for intrusive surveillance”.
However, this amendment takes it one stage further, so there needs to be a little more justification and understanding. I can understand the issue around the crimes, but I am not clear why any immigration officer could have those powers—which appears to be the case in the Bill, though perhaps not in the Explanatory Notes. Why is it not sufficient to extend the powers of current specialised officers, or to work with them and the National Crime Agency? I would also be interested in some information on the training that would be given to the specialised officers. Would there originally have been any expectation that they should have any specialised skills, or would it have been something that any immigration officer could take on if they had had the appropriate training?
Finally, does the UK Border Agency have the capacity to take on this role? The following amendment, in the name of the noble Lord, Lord Berkeley, which we will discuss shortly, covers a number of issues including queues at Heathrow, where we have seen enormous pressures put on the staff. Given the current wording of the Bill, and in particular that it would seem to apply to any immigration officer, I worry about giving very wide-ranging additional powers and responsibilities to a border agency that, as we heard earlier, is struggling to maintain its current responsibilities. It has had to draft in officers from the Ministry of Defence and civil servants from other parts of the Government. I want an assurance that anybody drafted in on a temporary basis—to help out with extended queues at Heathrow, for example—would not be given the powers of entry and surveillance as outlined in the Bill.
It would be helpful if the Minister could give some answers to those questions. The new powers given to the UK Border Agency are very extensive, and it would be interesting to know the Minister’s justification of them, and how he imagines that they will operate.
Lord Henley
My Lords, I am grateful to the noble Baroness for setting out what she is trying to do in these amendments, which I take it are merely probing amendments, as I believe she said. I am also grateful that she paid tribute to the very difficult job that immigration officers do. However, she probably used rather unfortunate language when she asked whether they were quite up to it, although she qualified what she meant by that. She then said that she thought that the Explanatory Notes were possibly better than the Bill itself. Sadly, we do not have legislation by Explanatory Note. However, I am always more than happy to look again at the wording of individual clauses, should it be necessary. Again, as always, we have any amount of time to deal with these matters between now and Report and the further stages as this Bill proceeds through Parliament.
Put very simply, the noble Baroness is asking what Clause 26 is about and why we think it is necessary. The proposed extension of powers is saying that it is necessary for the United Kingdom Border Agency to have extra powers to respond robustly to serious and organised crime. Customs officials within the UK Border Agency are already entitled to apply for intrusive surveillance under RIPA and for property interference under the Police Act for the purpose of investigating customs offences. This clause will rightly extend these powers to immigration officers for the purpose of investigating serious and organised crime.
I turn to the amendments and, in doing so, I hope that I will answer some of the points. I suspect that the noble Baroness has not quite got the wording of the amendments right because Amendment 149CA achieves the opposite effect to the one she wants. It would require the authorising officer, who is responsible for authorising applications to interfere with property under Section 93 of the Police Act 1997, to be a senior official who is working within a criminal and financial investigation team of the UK Border Agency. Although I suspect it may not have been the intention of the noble Baroness, the effect of this amendment would be to restrict and potentially lower the grade of the authorising officer.
Clause 26(1) already limits the role of the authorising officer to a senior official within the meaning of RIPA who has been designated for that purpose by the Secretary of State—that is, the Home Secretary. Within the police, the relevant rank for an authorising officer would be a chief constable. Under the UK Border Agency’s structure, this would be the current director of operations and deputy chief executive. No one working in the criminal and financial investigation teams would be senior enough to equate to that grade. I am sure that the Committee and the noble Baroness share our view that an authorisation to interfere with property should not be approved by anyone less senior than that level. I should also note that the director of operations and deputy chief executive of the UK Border Agency already effectively authorises applications under Section 93 of the Police Act 1997 with regard to customs investigations.
I appreciate that this is a probing amendment but, in short, it would weaken rather than tighten the controls on the exercise of these intrusive powers under Part 3 of the Police Act 1997. All that said, the noble Baroness made it clear that she is seeking to give effect to our commitment that we will limit the exercise of these intrusive powers—that is why she wanted to know why we are seeking extra powers—to specially trained immigration officers in the UK Border Agency’s criminal and financial investigation teams. We do not, however, consider it appropriate to include such an express provision in the Bill given the existing safeguards in the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. We do not have such specificity for customs officials, and the aim is to provide parity for immigration officers.
As the noble Baroness will be aware, Section 28 of RIPA provides that for a senior authorising officer to grant an authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is proportionate and necessary for preventing or detecting serious crime or in the interests of national security or in the interests of the economic well-being of the United Kingdom. The Police Act 1997 also imposes similarly strict controls over the authorisation of property interference.
I appreciate that Amendments 149CB and 153B are probing amendments. They would remove the powers sought for immigration officers in relation to the Proceeds of Crime Act 2002. These powers have been sought for good reason in an attempt to improve the effectiveness of the UK Border Agency’s investigatory capability. Providing access to the relevant Proceeds of Crime Act powers will ensure that the UK Border Agency’s immigration officers are able to play their part in dealing with the proceeds of organised immigration crime.
Moreover, these provisions will place immigration officers on the same footing as their police and customs counterparts and reduce their reliance on outside bodies such as the police. At present, only the UK Border Agency’s customs officials are able to use the full range of Proceeds of Crime Act powers and even then only in relation to customs offences. Immigration officers presently have to rely on the very few accredited financial investigators within the UK Border Agency or on seconded police officers to conduct those investigations. This is clearly a weakness in the UK Border Agency’s ability to fight organised immigration crime. The Bill ultimately ensures that the UK Border Agency can take action to deal with the proceeds of all the criminal offences in its remit, whether commodity smuggling or serious immigration and nationality crime.
The noble Baroness sought an assurance that, where civil servants and others are drafted in to help, we will be able to maintain the border appropriately and that they will have the extant powers. I can give an assurance that any civil servants brought in to help check passports will not be given the powers being sought. They would obviously not have the training that the noble Baroness and we think is appropriate to do so. In any case, those who are brought in to assist with the management of queues are being brought in specifically for that purpose and not to investigate criminal activity.
I do not know what the usual channels and others are thinking about the timing of these matters or whether the noble Baroness will have to keep going for another three minutes, but I hope that, with those assurances, she will feel able to withdraw her amendment. It may be necessary for me to write to her with further detail. I have explained why I think Amendment 149CA is defective. I leave it to the noble Baroness to consider what to do with her amendments.
Baroness Smith of Basildon
I am grateful to the noble Lord. I am puzzled about my amendment being defective. I know the noble Lord has enjoyed explaining that to me on a number of amendments. I always say they are about the intention behind the amendment and that we will come back on Report with one that satisfies him.
I understand that the Explanatory Notes are not part of legislation, as the Minister pointed out to me the other week—I am rather long in the tooth in regard to some of these things—and I am sure that they are not intended to be misleading. They state:
“The purpose of this amendment is to provide for immigration officers working in Criminal and Financial Investigation … teams in the UK Border Agency … to be able to apply to exercise”—
and then they go on to say what those powers are.
I will have to read very carefully what the Minister said in Hansard to make sure I fully understand what he is saying about it not being exclusively those officers—even though the Explanatory Notes say it would be—but that it would be other officers of a certain grade and level.
I said at the very beginning that we are not opposed to the extension of powers in principle, but we just need to understand the Government’s justification and to have some explanations and clarifications. I will read the Minister’s comments in Hansard to clarify the position for myself, but I wonder whether he is talking about slightly different things. At some point, he may have been talking about the authorisation of the action, while I am talking about the officers undertaking the surveillance as well. I hope we have not misunderstood each other. I want an assurance that the officers undertaking very intrusive forms of surveillance—perhaps phone tapping, as it says in here—will not just be authorised by a senior officer, but will have the appropriate skills, experience and training and that safeguards for the public are built in. This is a probing amendment but it may not remain one. We want to look at this a bit further and in more detail, but I am grateful to the Minister for taking time to explain some of the measures. I will look at what he has said in Hansard and I may come back to him on the point about who will have the powers and what training will be provided and I shall also look for an assurance that it will not undermine the skills of existing police officers.
One area on which the Minister did not respond was the relationship between such officers and the National Crime Agency. Given the debates that we have had earlier during the passage of the Bill, it would be helpful to explore the relationship that border officers, who deal with organised and serious crime issues as regards immigration and border control, have with the National Crime Agency, which is a national police force for organised and serious crime. We need to explore that further. I would be happy for the Minister to write to me on that point. I am happy to withdraw my amendment.
NHS: Annual Report and Care Objectives
(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, with the leave of the House, I shall now repeat a Statement made earlier today by my right honourable friend the Secretary of State for Health in another place on the subject of the Secretary of State’s report to Parliament on the health service, the Secretary of State’s mandate to the NHS Commissioning Board and the NHS Constitution. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement about my first annual report to Parliament on the health service, published today, alongside the report on the NHS Constitution and the draft mandate to the NHS Commissioning Board.
This year, the NHS has made major progress in the transition to a new system, one based on clinical leadership, patient empowerment and a resolute focus on improving outcomes for patients. In a year of change, as the annual report shows, NHS staff have performed admirably. Waiting times remain low and stable, below the level at the election, with the number of people waiting over a year at its lowest ever level. Today, only 4,317 patients are waiting more than a year for treatment, dramatically lower than in May 2010. Nationally, all waiting-time standards for diagnostic tests and cancer treatment have been met.
The £600 million Cancer Drugs Fund has helped over 12,500 patients to access the drugs previously denied them. We have extended screening programmes, potentially saving an extra 1,100 lives from breast and bowel cancer every year by 2015. More than 90 per cent of adult patients admitted to hospital–around 260,000 every week–are now assessed for venous thromboembolism, a world-leading programme. In 2011 and 2012, 528,000 people began treatment under the expanded Improving Access to Psychological Therapies programme, up from just 182,000 in 2009-10, with almost half saying they have recovered. Following the success of the telehealth and telecare whole system demonstrator programme, including a 45% fall in mortality, we are on course to transform the lives of 3 million people with long-term conditions over the next five years.
The NHS is also improving people’s experience of care. Patients are reporting better outcomes for hip and knee replacements and for hernias. In the latest GP patient survey, 88% of patients rated their GP practice as good or very good. The outpatient survey shows clear improvements in the cleanliness of wards and patients reporting that they were treated with respect and dignity. MORI’s independent public perceptions of the NHS survey shows that satisfaction with the NHS remains high at 70%. Mixed-sex accommodation breaches are down 96%. MRSA infections are down 25% in a year, while C. difficile infections are down 17%.
Real progress, too, is being made in public health. More than 570,000 families have signed up to Change4Life. And our support for the school games and Change4Life sports clubs in schools is helping to secure the Olympic legacy. The Responsibility Deal has seen the elimination of artificial trans-fats, falling levels of salt in our diets and better alcohol labelling. By the end of the year, over 70% of high street fast food and takeaway chains will show calories on the menu. To drive forward research into key areas like dementia, I have announced a record £800 million for 11 National Institute for Health Research Centres and 20 Biomedical Research Units.
All of this and a million more people with an NHS dentist, every ambulance trust meeting their call response times, 96% of patients waiting for fewer than four hours in A&E, QIPP savings across the NHS of £5.8 billion in the first year of the efficiency challenge and NHS commissioning bodies delivering a £1.6 billion surplus, carried forward into this financial year. Yes, all of this and a new system taking shape. The NHS Commissioning Board has been established, health and well-being boards are preparing to shape and integrate local services and 212 clinical commissioning groups, managing more than £30 billion in delegated budgets, are preparing to lead local services from April next year. We are also starting to measure outcomes comprehensively for the first time. Far from buckling under pressure, with the right leadership and the right framework, NHS staff are performing brilliantly.
In addition to the NHS annual report, I am today publishing a report on the NHS Constitution. The Health and Social Care Act 2012 strengthens the legal foundation for the constitution, including a duty on commissioners and providers to promote and use it. This report, the first by a Secretary of State, will help commissioners and providers to assess how well the constitution has reinforced the principles and values of the NHS, the degree to which it has supported high-quality patient care and whether patients, the public and staff are aware of their rights.
I am grateful to the NHS Future Forum and to its chair, Professor Steve Field, for their advice on the effect of the NHS Constitution. I have asked them whether there is further scope to strengthen the principles of the constitution before a full public consultation in the autumn. Any amendments would be reflected in a revised constitution, published by April 2013.
Rooted in the values of the constitution, we will drive further improvement across the NHS through a set of objectives called the mandate to the NHS Commissioning Board. The draft mandate is also published today. The mandate will redefine the relationship between Government and the NHS, with Ministers stepping back from day-to-day interference in the service. Through the mandate we will set the Commissioning Board’s annual financial allocation and clearly set out what the Government expect it to achieve with that allocation, based on the measures set out in the NHS outcomes framework.
These include measures of quality, such as whether people recover quickly from treatment, and also people’s experiences, including whether they are treated as well as they expect, and whether they would be happy for family and friends to be cared for in a similar way. It will promote front-line autonomy, giving clinical commissioners the freedom and flexibility to respond to local needs—freedoms balanced by accountability.
Each year, the Commissioning Board will state how it intends to deliver the objectives and requirements of the mandate, reporting on its performance at the end of that year. The Secretary of State will then present to Parliament an assessment of the board’s performance. If there are particular concerns, Ministers will, for example, ask the board to report publicly on what action it had taken or ask the chair to write a letter setting out a plan for improvement. Today’s publication of the draft mandate marks the beginning of a 12-week consultation. I look forward to working with patients, clinicians, staff and other stakeholders to finalise the mandate in the autumn.
These documents show how a new exciting chapter is opening up for the NHS. Starting with strong performance and robust finances, we are driving towards integrated services and community-based care. It will be a new era based on openness and transparency, and focused on what matters most to patients—health outcomes, care quality, safety and experience. It will be an era in which every part of the NHS—the Secretary of State, the Commissioning Board, clinical commissioning groups and healthcare providers—is publicly held to account for what is achieved. For the first time, Parliament, patients and the public will know exactly how the NHS is performing locally, nationally and internationally. It will be a new era in which patients feel in control, clinicians lead services and outcomes are among the best in the world. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord Hunt of Kings Heath
My Lords, in thanking the noble Earl for repeating the Statement made in the other place, I first refer noble Lords to my health interests in the register, which include being chairman of an NHS foundation trust and being a consultant and trainer in the NHS.
The Secretary of State has today presented his first annual report, which I can describe only as a report on a lost year in the National Health Service. Just when the NHS needed stability to focus all its energy on the financial and service challenges that it faces, which are momentous, the Secretary of State pulled the rug from underneath it with a reorganisation that no one wanted and the Prime Minister had promised would never happen. In fact, we have had not one but two lost years in National Health Service as the Secretary of State has obsessed over structures and inflicted on it an ideological experiment that made sense to him but, sadly, to very few other people.
His decision to dismantle existing structures before new ones were put in place has led to a potential loss of financial grip at local level in the NHS. Two-thirds of NHS acute trusts are reported to have fallen behind on their efficiency targets. I can speak personally here of the issues that that causes. We see temporary ward and A&E closures, panicked plans to close services sprouting up wherever you look, and crude rationing restrictions across the NHS, with 125 separate treatments, including those for cataracts and hip replacements, being restricted or stopped altogether by one primary care trust or another. This is an NHS that is drifting dangerously towards trouble or, in the words of the NHS chief executive, a former senior official in the noble Earl’s department and a distinguished health service manager to boot,
“a supertanker heading for an iceberg”.
Listening to the Secretary of State’s Statement, you could conclude that he is not looking at the same NHS as the head of the NHS Confederation. I wonder which world Mr Lansley lives in; perhaps it is la-la land, as it is sometimes called by well known commentators on the NHS. Perhaps that explains why the year has been hailed as a great success by the Secretary of State when it saw the biggest ever fall in public satisfaction with the NHS, as recorded by the British Social Attitudes Survey. I note that the Statement was rather selective in quoting from surveys of opinion, but this is the question that has been asked consistently since 1983.
Life on the ground is very tough in the health service, even for foundation trusts such as mine, which have consistently broken even. Acute trusts are in the dock. We are told that we take in too many patients. At times, Ministers say that we take too long to discharge those patients. At others, if media stories go in the other direction, we are told that we discharge patients too quickly. Rather than these knee-jerk reactions, we need an integrated approach. The problem is that the Government’s changes are working in the opposite direction. On the one hand, acute trusts face major squeezes on finances and therefore have to reduce capacity because the only way to make the big efficiencies needed is to close wards and reduce staffing levels. On the other, acute trusts are the most accessible part of the system, 24 hours a day, seven days a week, 365 days of the year. They have a much better offering than most GP deputising services.
Therefore, I ask the noble Earl whether primary care is stepping up to the plate and increasing its own accessibility. I will be very interested in his comments. I certainly find it bizarre that walk-in centres are being closed up and down the country. Can we look forward to primary care surgeries extending their hours to make up for that? Will primary care contribute to demand-management plans? I refer the noble Earl to Mr Lansley’s original speeches, in which he said that the reason for these changes was to put GPs in charge of the budget because, without that, doctors behave irresponsibly. Clearly, the intention was that GPs should ration services and manage the demands made on the rest of the system.
I do not see much sign of effective demand-management, although we certainly see rationing. Primary care trusts are dying but clinical commissioning groups are not focused on the big issues because, at the moment, they must seek authorisation, get themselves up and get the infrastructure ready. Therefore, at local level there is a great hiatus in ensuring that there is a system-wide response to these great challenges.
Paragraph 5.16 of the mandate comments that the NHS Commissioning Board,
“will be responsible for around £20 billion of direct commissioning, including primary care”.
Will the noble Earl tell me how the board will ensure that primary care is commissioned effectively? In paragraph 3.6, there is a very appropriate reference to the need for patient choice and primary care is mentioned. How will the public be given choice in primary care? The issue has bedevilled the health service for many years. We should like to hear how the Commissioning Board will ensure that there is genuine choice so that people can choose which GP’s surgery to belong to.
In paragraph 5.6 of the mandate, we come to this wonderful phrase:
“The Government’s aim is to move away from the top-down management of the NHS to a system where fully authorised CCGs will have, as the Future Forum put it, ‘assumed liberty’”.
The idea that the Government are currently engaged in letting go is a fantasy. The system is being tightly controlled from the centre. Clinical commissioning groups are being told what to do and there is very little sign of any autonomy whatever. I have to tell the noble Earl that nobody in the health service believes a word of what is contained in paragraph 5.6.
I come now to the intention, expressed in the mandate, that judgments will be placed on each part of the provider side of the NHS, in particular by asking patients whether they would recommend a hospital to a family member or friend,
“as a high quality place to receive treatment”.
I very much applaud the intention behind this; it is called the net recommender index. It has been taken from the private sector—the retail trade, I think. However, there is of course a difference. In the private sector, one can take it that most people want to shop, whereas most people do not want to be in hospital. On a scale of nought to 10, anything up to seven is regarded as not being a recommended value. The Picker Institute and CQC have both said that they have real concerns about the methodology. Before the Government simply go in for a simplistic league table, I urge the noble Earl to talk to the health service, let it have an input and come up with a system that actually will be seen as credible and owned. If the department insists on a very crude approach on this issue, I very much fear that it will give very false impressions of the quality of care in individual hospitals.
I welcome in paragraph 4.9 the commitment to promoting innovation and research. The noble Earl himself has a major part to play in this, and it is very welcome.
Alongside the mandate, the Statement is silent on the severe funding problems of local authorities that impact on their ability to provide support either to help to prevent patients having to go into hospital in the first place or to allow for their successful discharge as early as possible. Indeed, the Secretary of State was silent on the unfolding crises in adult social care. We have been promised a White Paper on service change, but the Government are silent on funding. It is widely believed that they have given up on the Dilnot proposals. Can the noble Earl reassure me on that matter?
I also want to ask the noble Earl about ministerial statements that there will be no rationing by cost in the health service. He will know that the recent survey undertaken by the Labour Party showed that rationing is happening on Ministers’ watch right across the system with a whole host of restrictions, not just on unnecessary treatments but important ones—a postcode lottery running riot. Have Ministers issued instructions to the health service to stop this?
I turn to bureaucracy and targets. The Government said when they first came in that they would scrap the four-hour A&E and 18-week targets; they have brought them back. Now they have gone further and adopted Labour’s guarantees. Today they have added on top of that a whole new, complex web of outcomes and performance indicators. The NHS needs simplicity and clarity; what it has got is a dense document with a complex web of 60 outcome indicators grouped within five domains. The House is entitled to an explanation of the difference between an outcome indicator and a target; but there is no difference. In fact, at the time of the greatest financial squeeze the health service has ever had to face, the Government are loading new targets on to the NHS, which is struggling to cope with the challenges that it is facing.
The House also needs to ask: to whom is this mandate to be given? What is happening here is the outsourcing of democratic responsibility and accountability to Parliament for the organisation that constituents value most to an unelected and unaccountable board. What assurances can the Secretary of State give to noble Lords that the Commissioning Board will listen to the concerns of parliamentarians?
I want to ask finally about the mandate that the Secretary of State has given to his new board. There is widespread concern in the health service that the mandate given to the Commissioning Board is one for privatisation. It was repeatedly claimed in both Houses during the passage of the dreadful Health and Social Care Bill that has been passed into law that there would be no privatisation, yet it is happening at speed as the NHS is being broken up and clinical commissioning groups are being forced to tender community services and create back-office commissioning clusters. In the mandate there is not one mention, except in the distribution list, of an NHS trust or an NHS foundation trust. It is quite clear what is happening. The department is using the language of providers because it wants, in the end, to float the provider side off from the National Health Service. There is widespread distrust of this Government in the health service and outside, and I am afraid that this Statement does nothing to assuage that view.
Earl Howe
My Lords, I would like to rise, as I usually do, to thank the noble Lord for his response, but I cannot do that on this occasion. The noble Lord must know that most of what he said was absolute rubbish. It sounded suspiciously to me like the words of his right honourable friend Mr Burnham in another place. In fact, I listened to Mr Burnham earlier and I thought that I recognised verbatim some of his turns of phrase in the speech that the noble Lord has just made.
I counsel noble Lords not to accept most of what the noble Lord, Lord Hunt, has just said about the performance of the NHS. He began by saying that the NHS has had two lost years, that we are engaged in an ideological experiment, and that there has been a loss of financial grip and wholesale closure of services. None of that is true. I am disappointed in the noble Lord because he is usually much more constructive and usually much readier to acknowledge the wonderful efforts of those who work in the health service and the achievements that they have brought to us throughout the year. I did not hear him mention those efforts and how grateful we all should be to those who work in the NHS for what they do for us.
I do not see in any of the figures that I read out the picture that the noble Lord presented to us. The NHS has delivered QIPP savings—that is part of the £20 billion Nicholson challenge that noble Lords will know about—of £5.8 billion. It is on track—this year the expected QIPP savings are £4.9 billion. The NHS delivered a surplus last year of £2.1 billion—£1.6 billion in the commissioning sector and £600 million in the provider sector. The commissioners’ surplus of £1.6 billion will be returned to them in full this year. To me, that is not a sign of financial strain. Yes, there are trusts that are reporting a gross operating deficit. How many are there? There are eight, in the entire country of England. Those, of course, are a matter of concern but we are working with those trusts to help them to resolve their difficulties—difficulties that very often originate from PFI deals set up under the previous Administration that were unsustainable. I am not decrying PFI as a tool or a lever, but the fact is that some of the business cases were very poorly founded.
The noble Lord asked whether we had instructed services to be rationed. I noted the other day the document published by the Labour Party on its NHS Check. What we have said is that PCTs should not make commissioning decisions on the basis of cost alone in deciding whether to commission a particular procedure. PCTs should consider the benefits of the procedure as well as the cost, but they could reasonably take a view that the evidence on a procedure suggests that it will not normally offer sufficient clinical benefit to justify its cost. That is nothing particularly new but it is very important. In other words, the resources involved may be better used in providing other treatments that have a greater impact in preventing or addressing ill health. No healthcare system in the world can afford to provide every possible treatment, irrespective of the evidence of whether it will do any good. The noble Lord is trying to paint a picture of the NHS denying treatment to people, while what it is doing is sensibly looking at what is value for money.
The noble Lord referred to patient satisfaction. When the public are asked to rate their satisfaction with services, their response may well be influenced by a wide range of factors. Our own polling of the general public, undertaken independently by MORI and published last month, shows that satisfaction with NHS is broadly stable at around 70%. Those are, by and large, people who have used the NHS recently. Of course we acknowledge that there is some disquiet among the public about the reforms to the NHS, which have indeed been misrepresented quite widely. However, acute trusts are not buckling under the strain; they are doing extremely well. Is primary care stepping up to the plate? Are CCGs focused on the big issues? In my experience, the clinical commissioning groups that are forming around the country are having exactly the right conversations. They are conversing with secondary care clinicians, public health specialists and those in social care, and looking at how care can be joined up across the system. It is an exciting opportunity for primary care.
The noble Lord asked about how patients could get choice in primary care. Well, the NHS constitution provides for the right to choice. The noble Lord will know that we have agreed two things with the BMA. One is that the boundaries of PCT practices can be varied, so that if somebody moves a few streets down the road they can still stay at their GP of choice rather than having to move. That is surely welcome. We have pilots around the country operating to look at whether commuters who come into the centre of London, for example, would like to have their GP near their place of work, not necessarily near their home. We will look to see what the lessons are from that; it is entirely right that patients should be given that choice.
The noble Lord referred to the Government not letting go and the tight grip from the centre. I do not know who he has been talking to. This afternoon I went to see the National Association of Primary Care and had a very good discussion; the climate of opinion there was that we had the balance just right between allowing it to influence clinical leaders locally, on the one hand and, on the other, the Department of Health providing sensible guidance and pointers to facilitate the process of clinical engagement.
On social care funding, no, we have not given up on Dilnot—far from it. The principles of Dilnot are sound, and we are working with the Opposition, as the noble Lord knows, to see what the best and most affordable formula might be, and the principles around that formula. I have said in recent days and repeat today that along with the White Paper we shall publish a progress report on funding and the draft Bill, which will be subject to pre-legislative scrutiny.
The noble Lord said that there was no difference between targets and indicators. I beg to differ there. There is an enormous difference between a target that is centrally set by government and an indicator, which is a meaningful signal devised by clinicians themselves to help them to drive up the quality of their own care. That is the difference—and that is what we want to see in the commissioning outcomes framework, which will stem from the NHS outcomes framework embodied in the mandate.
In view of time, I hardly want to rehearse again the rejoinder to the noble Lord’s final comment about privatisation. He should know that the Health and Social Care Act prohibits the takeover of any foundation trust by a private organisation. It simply cannot happen. There is no equity capital to be purchased, for one thing. Privatisation means different things to different people. Yes, if we are talking about choice for patients between an NHS provider and an independent sector provider or a charity, we should welcome that, because choice in that context drives up quality. If we are talking about selling NHS assets and hospitals to the private sector, that is off the agenda—and it will be permanently off the agenda, as far as I am concerned. The Health and Social Care Act ensures that there is no bias in favour of the private sector when commissioners are designing care in their locality, so that as far as possible there will be a level playing field between all types of provider. There is no hidden agenda in this area.
I hope that I have covered most of the points covered by the noble Lord and I hope that he will think again about some of the criticisms that he unfairly levelled against the NHS.
Baroness Barker
My Lords, I thank the Minister for introducing a highly innovative document. This is the first time that the NHS has ever been treated in this way, with a document of this kind brought to Parliament and put out to consultation. I am delighted that in such a milestone document mental health has not been forgotten and is included alongside physical health.
I wish to ask the Minister three quick questions, because this document is important and the process of consultation about it is important for the future of the NHS. First, in the section on commissioning, will the Minister tell us whether he believes that the document fully reflects the decision taken in this House during the passage of the Health and Social Care Act that commissioners should not be under any obligation to put services out to tender when there is a justifiable case not to do so in the best interests of patient care? I want to make sure that he believes, as I do, that that point needs to be stressed during this period of consultation.
Secondly, with reference to the Public Administration Committee report in 2011 about the need for government to have robust accountability and audit trails as services are increasingly delivered by other providers, will the noble Lord reassure the House what the processes will be, given all the work that was done by my noble friend Lady Williams of Crosby about the capacity of Parliament and the Secretary of State to have sufficient information to judge whether or not the aims and aspirations of the document have been met in practice? How will it be evaluated and what data will be made available to Parliament to make that judgment?
Finally, I welcome the part of the mandate about the NHS in its broader context, but does the Minister agree that the omission of any mention of housing is a serious one—in particular aids and adaptations, which are so important to prevention of ill health and for the reablement of people who have been in acute care?
Earl Howe
My Lords, I am grateful to my noble friend. On her first question about commissioning and the matter that we discussed during the passage of the Health and Social Care Act, she will remember that the cardinal principle of “any qualified provider” is that it is for commissioners to judge whether putting a service out to tender is in the best interests of patients. If there is no need to bring in competition, there is no obligation on a commissioner to do so. Why should they wish to? On the other hand, a service may be failing. The classic example that I always give is that of children’s wheelchair services. In some parts of the country it is appalling. There is every reason in the world for a community service like that to be put out to tender. Nobody argues with that, if it delivers a better service at the same or roughly equivalent price. So I can reassure her on that point.
On accountability and audit trails, the way in which the board will hold the service to account will be based on the commissioning outcomes framework very largely, but of course there will be very tight financial controls through the accounting officer of every CCG. Broadly speaking, the service will be held to account through the results achieved for patients, the quality of care and the outcomes. There will be metrics attached to those—the indicators that I referred to, which fall below the NHS outcomes framework, as it were.
My noble friend will notice in the mandate that we have quite consciously not articulated umpteen sets of targets or indicators for particular disease areas, such as cancer or coronary heart disease. Once we started to do that, we would produce a volume 500 pages long; nobody wants that—the clear message that we had was that the mandate should be brief, succinct and to the point. That is what we have produced in draft, and we would be very interested to hear what noble Lords think about that. I encourage all noble Lords to feed in their views as to whether we have got the balance right.
On housing aids, I do not think there is anything specifically in the mandate on that. On the other hand, one of the features of the integration of services will be for the health service to work much more closely with social care. We believe that the health and well-being boards will provide the best forum to do that. I hope that through mechanisms such as pooled budgets—and indeed the support that my department is already giving local authorities to bolster their social care budget—such housing aids can be maintained as we move into the future.
Lord Walton of Detchant
My Lords, many aspects of the Statement are most welcome. I particularly commend the reference to the enhancement of research in the National Health Service, which was one of the concerns widely expressed during the debates on the Health and Social Care Bill, which is now an Act. Turning to that Act, can the Minister say what progress is going to be made and what help will be given to the major general hospitals that are intended to become foundation trusts but which at the moment have no particular prospect of becoming so for a variety of reasons?
Perhaps I may also briefly mention something that was not covered in the Statement—the crucial importance of issues relating to the education of healthcare professionals, a matter to which I, and many of my colleagues, referred during the debates on the Act. What progress has made on establishing the so-called clinical senates? I know that according to Sir David Nicholson we can no longer talk about regions—we can talk about sub-national structures. What is going to happen to those clinical senates that are going to have the responsibility of holding the postgraduate deans and the programmes of education and training which they will in future supervise?
The other thing about which we were very concerned was the commissioning of highly specialised services which, during the debates, it was agreed would become the responsibility of the national Commissioning Board. What progress has been made in developing the outreach centres under the national Commissioning Board that will be responsible for commissioning those highly specialised services at a local level? In relation to that, there is an issue that is quite crucial and important—the future of the organisation presently called the Advisory Group for National Specialised Services. It has a budget at the moment of about £100,000 a year. It has been able to support the introduction and use of remedies for treatment of a number of exceptionally rare diseases. It fulfils a vital function. Will it be absorbed and taken over by the national Commissioning Board? Will that body then carry on with those responsibilities? These are quite important issues about which many of us are concerned.
Earl Howe
The noble Lord asked me a number of questions and I will do my best to answer them. First, on education and training, the news is that on 28 June Health Education England was legally established as a special health authority and held its first board meeting. From October this year, Health Education England will start to provide national leadership and oversight to the new education and training framework in England. It will take on, as the noble Lord knows, its full responsibilities from April 2013. The chair, Sir Keith Pearson, and the chief executive, Ian Cumming, have been appointed. Both are men of very high calibre, as I am sure the noble Lord knows.
On the matter of clinical senates, the plans for those will develop over the summer. My advice from Sir David Nicholson is that he should be able to provide further and better particulars in the autumn on how they will look. The noble Lord is absolutely right that they will play an important part in helping to advise not only commissioners in the health service but also the local education and training boards about configuration.
On specialised services, the draft mandate emphasises the importance of driving improvements in the £20 billion of services commissioned directly by the board, including specialised services for people with rare or very rare conditions. One of our proposed objectives in the draft mandate asks the board to put in place arrangements to demonstrate transparently that these services are of high quality and represent value for money. Objective 21 is the crucial one to which I would refer the noble Lord.
On the question about the Advisory Group for National Specialised Services, we will be making an announcement about AGNSS as soon as we can. There is work in train at the moment to look at exactly how AGNSS’s work, which of course is very valuable, can be transposed into the new system. Unfortunately, I do not have any definite news for the noble Lord at the moment.
As regards assistance for foundation trusts, the noble Lord asked about the foundation trust pipeline. I would refer him to page 28 of the Secretary of State’s annual report. Broadly speaking, however, apart from a few financially distressed trusts, some of which I have already referred to, we believe that the great majority of NHS trusts will be ready to take on foundation trust status either in the spring of 2014 or fairly soon thereafter. We have no reason to think that the timetable we discussed during the passage of the Bill has slipped materially.
Baroness Williams of Crosby
I add my appreciation to that of my noble friend Lady Barker to the Government for putting so much information before Parliament and for inviting Parliament to help work out some of the massive changes that will be required to enable the NHS to deal with the problems confronting it. I also welcome my noble friend the Minister’s comments making it clear that a level playing field now exists between the NHS and the private sector, contrary to widespread views that the NHS is coming to a messy end.
I have one important question for my noble friend which echoes in some ways the question asked by the noble Lord, Lord Walton of Detchant. It concerns the issue of primary care which he was discussing with the noble Lord, Lord Hunt. Clearly, a reconfiguration of health will be heavily dependent on the ability of the primary care sector to deal with a great many of the issues that come before it and to pass them on to the community or ancillary professions wherever possible in order to avoid unnecessary attributions or referrals to hospital. In that context there is one very disturbing issue which we have to address and on which I would particularly welcome the Minister’s comments. He will know, as most of us in the House who are concerned with the health service will know, that there has been a much more rapid increase in the number of young men and women trained for consultancy than for general practice—the figure is something like three times the increase for GPs in the past five years. Given that there is in general practice a very rapidly rising proportion of young women, there is an issue of maternity care and the necessary reduction in hours associated with many young women GPs. I say that with the recognition that it creates some problems. I think that most of us in the House would agree that their quality is equal to that of the men but often they do need periods of shorter service.
Finally, there is the very serious problem of the substantial bulge in GP retirement that is coming up in the next couple of years, as the Minister will know. My question echoes that of the noble Lord, Lord Walton, in terms of training and education. What provision is being made to encourage young men and women to go into general practice; is adequate provision being made to train them; and are there incentives for them to enter into the profession in that capacity?
Earl Howe
As so often, my noble friend has alighted on a real issue and I am grateful to her. She is right that we are not seeing enough trainee doctors going into general practice. The previous Government and we have had informal targets for new GPs. We have not met those targets for a few years now. It is a matter of concern and we are working very closely with the universities, the Royal College of GPs and others to see how the numbers can be rectified. It is not just a numbers game because, as she rightly alluded to, we should increasingly be seeing a better sharing-out of responsibilities in the community between not only GPs but community nurses, practice nurses, midwives, health visitors and others. There is quite a lot of work to be done there.
My noble friend is right about women GPs, and headcount numbers in that context are not always the most reliable indicator of the workforce number. This is part of the reason why we set up Health Education England, because with the advice of the Centre for Workforce Intelligence, the body that advises the Government on long-range forecasts of workforce needs, and the input from local providers—primary care providers, not just hospitals—of what they see as their needs into the future, we ought to get a much better handle on long-term needs for the different professional disciplines.
I do not at all brush aside this problem. I hope my noble friend realises that this is a real issue and we are grappling with it. Actually the NHS has grappled with it for a number of years, partly unsuccessfully, but we hope to do better with the new configuration that we have debated so often.
Baroness Wall of New Barnet
My Lords, I welcome the report and in particular I thank the noble Earl for his emphasis—which I would like him to re-emphasise when he responds—on just how hard people are working in the NHS. As always, I reflect my own experience. I do not live in a different world from other people and I certainly know from the trust that I am chair of that people are working exceedingly hard.
Although there are some reservations, if I may say so to the noble Earl, around the progress we are having, I think that that is more about people getting used to what the changes mean. In particular, I want to focus on the CCGs. As the noble Earl knows, my trust has a hospital in Barnet and one in Enfield. Barnet CCG is firing away and working brilliantly. Enfield is still trying very hard to get its act together. The noble Earl knows how much I care about this, and the effect is that we are not getting the primary care out in Enfield where we need it. I would have liked the report to have focused more on moving away from hospitals—which I know is supposed to be heresy for someone who is the chair of a provider trust, but I really believe this—and making sure that we have the opportunity for more primary healthcare and support for those CCGs to be urged forward.
I know we have only a minute so I am not going to say anything else because I know other colleagues have been waiting desperately to get in, but there is a lot more I could say.
Earl Howe
The short answer to the noble Baroness is that she is, of course, absolutely right about service redesign locally. It involves the kinds of conversations that are already happening in many areas between primary and secondary care clinicians to see how we can bring about that shift that most experts agree is desirable and certainly patients want to see. This is an ongoing conversation. I do not know as much as I should about the noble Baroness’s particular area of the country, but I will gladly follow that up with her after this.
Lord Cormack
My Lords, very briefly, my noble friend indicated progress towards the elimination of mixed-sex wards. This issue causes quite a degree of anguish in the country. When can we expect to see the end of them?
Earl Howe
My Lords, my noble friend is absolutely right. However, the NHS has made staggering progress. The reduction in mixed-sex accommodation has been virtually—but not quite—total, but it is something that we continue to emphasise to the health service and which will continue to matter, in the context of the NHS outcomes framework, in the patient experience domain, which is contained in the mandate.
Global Fund: AIDS, Tuberculosis and Malaria
(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Fowler
To ask Her Majesty’s Government what plans they have for helping the development of the Global Fund to Fight AIDS, Tuberculosis and Malaria.
Lord Fowler
My Lords, first, I very much welcome the number of speakers who have put their names down for this short debate, which I think speaks volumes for the importance of making progress in this area.
I speak as an enthusiastic supporter of the Global Fund. I saw it in its early stages, when Richard Feachem was director, and I pay tribute to all the pioneering work that was done then. The fund has already done vast good. It has an enormous canvas: HIV/AIDS, tuberculosis and malaria. Without exaggeration, it is one of the most ambitious health programmes that the world has ever seen. The lives of millions of people have been saved, but the bleak fact is that much, much more needs to be done. The challenge remains immense.
With HIV/AIDS, the world death toll is still 1.8 million a year, 30 or 40 years after the virus began its deadly sweep, first through sub-Saharan Africa and then through so much of the rest of the world. With TB, the latest figures show a death toll of 1.7 million, with the highest number of deaths in the Africa region. With malaria, there were an estimated 655,000 deaths in 2010, of which 91% were in Africa. Of course, these diseases do not fit into neat, separate boxes. Together, HIV and TB form a lethal combination, each speeding the other’s progress.
There is no question of the size of the death toll, but the added tragedy is that we are not being held back by a lack of knowledge of what needs to be done or what measures are necessary to save lives. When I was Health Secretary, dealing with HIV at the beginning of the crisis, there were no drugs to prolong life. I remember visiting a hospital in San Francisco, where there was a large ward full of young men simply dying from AIDS, with nurses being able to do absolutely nothing. Of course, the same was true here in London. Today is the exact 30th anniversary of the death of Terrence Higgins, the first person in the UK to be publicly identified as dying from AIDS, who has given his name to one of Europe’s most effective civil society organisations working in this field.
That was the 1980s, but today we have anti-retroviral drugs that are easy to take and able to ensure that a man or woman can live a long life. The means are there to tackle the disease, just as they are with TB and malaria. What is lacking in the world today are the resources that are necessary to take full advantage of the medical advances, and the political will to bring this about.
In its brief life, the Global Fund has done wonders. It has approved grants worth $22 billion for 150 countries. It has provided anti-retroviral therapy for an estimated 3 million people. It has detected and treated almost 8 million cases of TB between 2002 and today. It has enabled the treatment of 170 million cases of malaria. Of course, I acknowledge that there have been some problems in resources reaching the people for whom they were intended, although frankly these should not be exaggerated. When they have arisen, they have been tackled, and they continue to be tackled very effectively by the Global Fund and its excellent new general manager, Gabriel Jaramillo. The real characteristic is that money donated to the Global Fund has reached its target; that is not the problem.
The real problem lies with Governments. Some do not give anything at all and simply ignore the problem that is on their doorstep. I will give one example from the area I know best, HIV. One of the fastest growing epidemics in the world today is driven by injecting drugs. It is a problem in eastern Europe and many other countries. It is certainly fuelled by criminally imported drugs, but also by deadly home-made combinations. According to UNAIDS, only eight of every 100 people who inject drugs have regular access to sterile injecting equipment. Half the countries with epidemics centred on injecting drug users have no needle and syringe programmes at all. Yet all the evidence is that programmes such as clean needle exchanges work in reducing and almost eliminating infection. In Britain we started such a policy in 1986-87 and the result is that only 2% of new cases now come that way. I hope that the Minister will take the opportunity to underline the continuing support of the Government to this policy, given the comments that have been made outside this House.
That brings me on to a specific issue concerning the Global Fund. Ukraine, where I spent a week recently looking at the issues, has a massive problem of drug users injecting themselves. There are no government-run needle exchanges and no substitution programmes, but a great deal of discrimination and stigma. All prevention work is carried out by civil society organisations, notably the excellent International HIV/AIDS Alliance. It, in turn, is financed by the Global Fund. It has limits on its financial resources, so has decided to concentrate help on the poorest nations. We can see the reasoning behind that, but it means that help for poor, middle-income countries such as Ukraine will reduce and eventually be eliminated. The effect is to throw responsibility back on the Government of Ukraine, but frankly there is no sign whatever that they are ready to pick up the challenge and give that policy priority. We face the real prospect that the progress that has been made will be reversed.
That is the underlying fear in all three areas that we are debating tonight. Massive advances have been made by the Global Fund but the danger is that the potential to do more good and save more lives will be ignored as we walk on the other side of the road. In that respect, let me say this about the Government’s response. Like the previous Government, the coalition has been a firm supporter of the Global Fund. We are the third biggest contributor and no one can doubt the commitment of DfID and the Secretary of State, Andrew Mitchell—I would expect nothing less from the MP for Sutton Coldfield. However, the general position is not remotely as encouraging. We are going through the most difficult period in the fund’s history. At the end of last year it cancelled its 11th round of grant-making, which would have involved spending of $1.5 billion. It did that because of fears of inadequate funding. The result is that no new grants will be approved until 2014, although existing contracts will obviously be continued.
That position has caused dismay among civil society organisations. Again, it needs to be stressed just how much is done in all these areas by non-government organisations. They have filled a gap and without their work millions of lives would have been lost. In these circumstances what can this country do? The answer is that we should seek to take a lead to give an example that others might follow. The Secretary of State has made it clear that he is prepared to increase very substantially the Government’s contribution to the Global Fund for 2013 to 2015 by up to double—in other words, double the current amount of £384 million. That is a very significant promise that I wholeheartedly welcome. I urge that the occasion should now be found to make the pledge a firm commitment. By itself, the increased contribution will save lives but the hope must be that an announcement of that kind will unlock other funds from around the world. The Global Fund has already shown what it can achieve. The aim must now be to allow it to achieve its full potential.
Lord Parekh
My Lords, I thank the noble Lord, Lord Fowler, for securing this debate and for introducing it so well. Since he has provided a large number of relevant statistics, I am spared the trouble of having to rehearse them.
I think that the Global Fund has been doing excellent work, largely because of its overall strategy. It is innovative and engages in demand-driven financing. Its funding is based on performance, it engages local communities, and it receives contributions from the private sector as well as voluntary organisations and the Government. All that gives it a certain strength. As it is in the process of revising its strategy for the next few years, I want to propose three or four important ideas that it might like to consider.
First, the fund used to do a little more than it has done so far to negotiate with manufacturers to reduce drug prices, which eat into its funding and limit its capacity to help the 150-odd countries that are its members. Secondly, it needs to concentrate a little more than it has done on strengthening health systems. Currently it allocates about 36% of its investment to that. I feel that it needs to do a little more in this area and to reconsider its priorities. In terms of strengthening health systems it needs to pay more attention to raising public awareness of the three major pandemics with which it is concerned, concentrating as much on prevention as on cure, making sure that the nursing staff and others are well trained and that there is an international exchange of experts from developed countries to the poorer countries. It has almost completely ignored that area and my experience is that there are a lot of people who could be persuaded to go to developing countries and help to train staff.
Thirdly, regional results are uneven. Grants for TB were achieving between 82% and 100% of their targets, but for malaria the figure fell to between 59% and 82%. Why are the malaria-related grants performing less well than those for TB? One could say that in some parts of the world there has been a growth of parasites that are resistant to artemisinin—for example, in south-west Asia. That by itself would not explain it and one would like to see some monitoring of those uneven results. Finally, although the Global Fund has been involving civil society organisations, as the noble Lord, Lord Fowler, pointed out, perhaps there is scope for greater civil society intervention in terms of planning strategy, putting pressure on Governments and monitoring the harmful industrial activities that resulted in these three pandemics in the first instance. That kind of work can be done only by civil society organisations, because the Global Fund by itself is seen as an external body and cannot be seen to be interfering in the internal politics and activities of the receiving countries.
Baroness Hayman
My Lords, I, too, congratulate the noble Lord, Lord Fowler, on initiating this debate and on his long-term commitment in this area. I declare non-financial interests as a trustee of the Sabin Vaccine Institute and vice-chairman of the Parliamentary All-Party Group on Malaria and Neglected Tropical Diseases.
The noble Lord, Lord Fowler, said that these diseases tackled by the Global Fund do not form neat, separate boxes. Indeed, they do not. Tonight, I want to concentrate on the connectivity and co-morbidity between neglected tropical diseases and the diseases covered by the Global Fund. Recent evidence, published in the New England Journal of Medicine in an article by Peter Hotez, the director of the Sabin Vaccine Institute, Jeffrey Sachs, and others has shown that there is a widespread geographical overlap between the prevalence and severity of HIV/AIDS, tuberculosis, malaria and NTDs. In the brief time tonight, I wish to highlight some of the opportunities that the cheap and effective treatments available for NTDs bring to that fight against HIV/AIDS, malaria and TB.
Investment in mass drug administration programmes were given a great boost at the London summit on NTDs, partly by, as the noble Lord, Lord Parekh, will be pleased to hear, the vastly increased donations of drugs from pharmaceutical companies and the very welcome additional funding from DfID. Sustained effort in this field would not only diminish the suffering and increase the educational and economic prospects of some of the world’s poorest people but, beyond that, additional resources and support from the global fund for integrated programmes could prove highly potent in the fight against the major killers that we are discussing tonight.
The scientific evidence for such an approach is, I believe, growing more potent by the day. For example, we know that those poor children infected by helminths—horrible worms which debilitate and stunt their lives and which can be treated for 50p per child per year—are more likely to acquire TB, and the acquisition of TB will make for more expensive and problematic treatments. Similarly, when hookworm overlaps with malaria, as it does throughout sub-Saharan Africa, the result is profound and debilitating anaemia, especially in young children. The association between schistosomiasis and HIV prevalence and susceptibility is becoming clearer all the time. Research has shown that treating girls and women regularly for schistosomiasis can help to protect them from HIV infection, and that women with female urogenital schistosomiasis, which causes genital lesions, are three or four times more likely to have HIV infection.
It is difficult to deal with some of these complicated interactions in the short time available but I should like to make it clear tonight that, by investing in research into possible vaccines for some of these diseases, bundling together treatments for NTDs and the Global Fund diseases, we do not lose focus; rather, we prevent ourselves putting on blindfolds that could stop us getting great value for money and alleviating much suffering.
Lord De Mauley
My Lords, I apologise for intervening. I know that what noble Lords have to say is extremely important. However, they will appreciate that this is a time-limited debate and that there is very little spare time in the budget. Every noble Lord who goes over his three minutes is therefore eating into the time of noble Lords who speak after him.
Lord Lexden
My Lords, my noble friend Lord Fowler has done this House another profound service by bringing before us this evening the state of this important and ambitious Global Fund on the anniversary of the death of Terrence Higgins. I repeat some of the astonishing figures that he gave.
By the end of last year, the fund’s work had given more than 3 million people access to antiretroviral drug treatments to combat HIV, almost 8 million people had been treated for tuberculosis, and more than 230 million mosquito nets had been distributed to help to combat malaria. These are truly impressive figures, and they underline the importance of securing effective solutions to the fund’s recent administrative and internal problems. As the International Development Select Committee of the House of Commons noted, donor contributions fell as the fund attracted some negative reports about the misappropriation of some limited funds. A body which has come to be regarded, in the committee’s words, as,
“an effective international financing institution”,
and which has helped to save 7.7 million lives in over 150 countries was forced to cancel its latest round of funding applications, as we heard from my noble friend, anticipating significant shortfalls as a result, in part, of growing doubts among donors about the organisation’s management.
The pace of reform at the fund has been significant. My right honourable friend the Secretary of State for International Development said recently that,
“strong leadership is now in place and action is being taken to begin a process of robust reform”.
He made it clear that the Government are,
“prepared to agree a significant increase”,
in their contribution to the fund if the reforms succeed. If the British contribution is increased, a clear signal will surely be sent to other donors that Britain believes that the fund has established itself firmly as a strong and efficient organisation capable of providing the continuity of care which millions in the world’s poorest countries need so much. As the Bill and Melinda Gates Foundation stressed at the height of the allegations over fraud, while,
“dealing with these hard-to-reach places is challenging ... not trying to save these lives is unacceptable”.
Now that the fund is committed to,
“better financial and risk management”,
and to delivering the best possible returns on taxpayers’ money, Britain should prepare itself to lead a global recommitment to support an institution upon which so many depend.
This coalition Government pledged at the outset to strengthen our country’s contribution to tackling the problems of the developing world. It is to the Government’s credit that, even during a time of severe economic stringency at home, they have held fast to that pledge. Compassionate conservatism is in fruitful alliance with liberal democracy. In Milton’s words from Paradise Lost:
“good, the more
Communicated, more abundant grows”.
Lord Rea
My Lords, the noble Lord, Lord Fowler, has, as usual, chosen a topic which urgently needs to be addressed. In three minutes I shall try to cut to the quick.
The Global Fund has been an overall success, as everyone has said. DfID has played a major part in this, recognising its transparency and accountability. In fact, the Global Fund itself recently detected and put right a minor accountability problem within its organisation. It was a small fraudulent diversion of funds, I believe, but that was seen to.
The Global Fund is a very focused organisation which funds vertical targeted programmes. However, subsidiary aims are to assist and strengthen national healthcare systems and support civil society. Many, like the noble Lord, Lord Parekh, feel that this should have greater emphasis, as only then will the programme initiated by the Global Fund be sustainable. These aims need to be integrated into the general healthcare provision of the countries concerned. HIV, TB and malaria are a heavy burden but they are only part of the whole infectious diseases picture, let alone the increasing role in the developing world of non-communicable diseases.
In April, the Secretary of State for International Development, Andrew Mitchell, said that, following up its already substantial grant to the transitional funding arrangements to take the place of the missing funds from the cancelled round 11, the UK could increase its contribution to the Global Fund very substantially, as the noble Lord said, in 2013, 2014 and 2015 by up to double the current £384 million pledge. Can the noble Baroness give us some indication of how much it will be and when the amount will be announced? What occasion will the Secretary of State choose to make that statement? The money is urgently needed, as already several programmes have had to be either contracted or postponed. I am worried in particular by the postponement of plans to address emerging threats such as resistance to artemisinin combination therapy, in Myanmar—Burma. That of course is the main, if not the only, weapon against the malaria parasite. I hope that, if a donation is made, other countries will be encouraged to contribute to the fund, as the noble Lord suggested will be the case.
Baroness Masham of Ilton
My Lords, the worldwide emergence of multidrug-resistant tuberculosis is a major and most important threat to global tuberculosis control. The continued spread of extensively drug-resistant tuberculosis throughout Asia, eastern Europe and southern Africa is an ominous sign. There are two issues regarding multidrug-resistant TB. There is a lack of diagnostic tests, and new diagnostic technologies for detecting drug-resistant TB are now available but are expensive and constrained by round 11 of the grant of the Global Fund. There is lack of access to second-line TB drugs for drug-resistant TB and the Global Fund should invest more in provision of adequate TB drugs. In Africa, 70% of TB patients are co-infected with HIV. A large percentage of TB and HIV cases remain undiagnosed. More proactive routine screening needs to be introduced at all points of care. All receiving countries should account for their funds so there is no malpractice.
Decades of the use of anti-TB drug treatments have resulted in the growth of multidrug-resistant tuberculosis strains. The highest ever prevalence in the world of MDR TB was found in Minsk, Belarus. MDR TB was found in 35.3% of new cases and in 76.5% of those previously treated. In addition, extensively drug-resistant TB was found in 14% of MDR TB cases. This is much higher than the global average. We must not be complacent. I think of the unfortunate 15-year-old girl who died of TB in Birmingham having not been diagnosed by her GP or four different hospitals. She had had TB in 2009 and was struck down again in 2010. I hope lessons will be learnt from this tragic case. Eastern Europe has the highest level of infection, but London has the highest TB rate in any European city. I am pleased that WHO has praised the UK’s Find and Treat service, which uses a mobile X-ray van to screen homeless people and drug addicts in London for TB. I too think that it does a splendid job: its vital work must always be supported.
Lord Black of Brentwood
My Lords, I join with others in the heartfelt plaudits for my noble friend and welcome the vital work of the Global Fund. For more than 10 years it has been saving lives, saving families and sometimes saving entire communities that might have been ravaged by TB, malaria or HIV. However, the fine work that the fund undertakes will only ever be part of the solution unless we do much, much more across the world to tackle the stigma which is so often the engine which drives the transmission of these diseases.
This issue is at its starkest in the battle to bring HIV and AIDS under control in the developing world. In much of Africa, particularly in those countries ravaged by HIV, it is still regarded as a great taboo, with sufferers marginalised by society. Far too many of them continue to be driven underground, their conditions untreated, allowing the virus to flourish, often on the margins of society.
Decriminalisation of homosexuality in countries where it is still illegal—some 80 of them worldwide, which is a shocking figure—would be a major step forward in breaking this vicious cycle of stigma. I commend the work of the Human Dignity Trust in this field. Its efforts to ensure the application of international human rights laws in countries where they are ignored is groundbreaking and will do a huge amount to complement the vital work of the Global Fund. They must work hand in hand. I hope this House may be able to debate the subject of decriminalisation at some point.
TB too suffers from stigma which can make it difficult to tackle. It is all too often seen as a disease of the poor and disfranchised, of those living on the fringes of society. Although it can be treated quite easily, many do not get the therapy they need—including a long and expensive drug programme—because of the fear of marginalisation. One of the principles of the Global Fund is to,
“pursue an integrated and balanced approach to prevention and treatment”.
That should include the provision of carefully formulated and informed education programmes to ensure that those societies and communities most affected or at risk have a better understanding of these diseases, for it is only understanding that will lead to a reduction in stigma. Schools and a free media have an absolutely fundamental role to play in ensuring that, over time, those who suffer from HIV and TB in particular are treated not as pariahs but as ordinary people who, through no fault of their own, have contracted illnesses which, if left untreated, will kill them.
Lord Boateng
My Lords, the whole House—and, indeed, the wider world—owes the noble Lord, Lord Fowler, a debt of gratitude, not only for this debate but for his leadership on this issue. The Global Fund is a unique and special model for development in that it is a partnership between donor Governments, civil society and the private sector. That is a very special partnership and I declare an interest, serving as I do on the global health advisory board of a major pharmaceutical company led by Sir Richard Feachem, the founder of the fund.
I seek, this evening, to draw attention to one particular aspect of that partnership in the fight against malaria that urgently needs additional resource if the momentum is to be maintained. The reality is that the funds committed to malaria are expected to peak this year at just under £2 billion. They will remain substantially lower than the resources required to achieve the global targets under the millennium development goals, which are estimated at just under £5 billion for 2010 to 2015. We will not be able to build on the real gains that have been made in combating malaria globally, and in sub-Saharan Africa in particular, without added momentum being given by additional, concrete pledges to the Global Fund. The fund has been described by our own multilateral aid review as having given “very good value” to the taxpayer and,
“very high standards for financial management and audit”.
That is where the Global Fund is now, after the reforms, and we should back it. I commend the Secretary of State for International Development for the excellent work that he and the department have done in supporting development generally and healthcare in particular. However, we now have to concretise that support in terms of pledges if we are to see the gains already made consolidated.
I will make five quick points in relation to malaria. We know that interventions on it are cost-effective, saving more lives per dollar spent than interventions for most other diseases. We also know that it requires long-term financing commitment for country-implementation activities and, importantly, for research and development. From my own experience of a childhood lived under bed nets—and with ready access to drugs, because of the fortune of my parents’ financial situation—in a country which was first colonial, then newly independent, and where there was an effective public health system able to promote spraying as part of a unified response to the challenge of malaria, I know that it works. It is something where you can see real gains made and we have seen them in Swaziland, Namibia and South Africa.
In Swaziland there is a blessing: “Pula! Pula! Pula!”—let it rain, three times. Let the demonstrated largesse and compassion of the British taxpayer rain on the Global Fund.
The Earl of Sandwich
I too am grateful to the noble Lord, Lord Fowler, and to the all-party group which has very helpfully briefed us. My experience comes from the voluntary sector in east Africa with Christian Aid and other local church partners working on HIV/AIDS. On these visits, I am always impressed by the resilience of the individuals who often suffer—as the noble Lord, Lord Black, says—in isolation and the critical role of the family and the community around them, on which the hope and investment of outsiders must always be based. I also admire their ability to put up with the ignorance and incompetence of outsiders coming in—even health professionals—who may be the victims of larger issues such as corruption in their department. On a parliamentary visit to Kenya a few years ago it was clear that the extent of graft in the procurement of pharmaceuticals was such that the health ministry had been simply split in two, and no one could even rely on the safe supply of drugs on the WHO list; they were still stuck in warehouses.
Today, we are primarily concerned with the shortfall in funding but, as we go along, we have to recognise the frailty of human beings and systems. Families are so often left to cope alone. We need to train more local health auxiliaries. As the noble Lord, Lord Parekh, has said, we need to give much more support to civil society. It is always easy for aid agencies to throw money at poverty through ineffective bureaucracy rather than working closely with the people most concerned. This is how the World Bank and other large organisations came a cropper in South Sudan two years ago. We know that the Global Fund itself has suffered from serious fraud, although I am glad that that has been addressed. I join others, including the International Development Committee, in again asking Her Majesty’s Government whether and why DfID’s funding is being held up, and if they are delivering on their promises.
I find that I can trust the voluntary agencies to work closely with the local community. Agencies like Save the Children are expanding their HIV and AIDS programmes all the time. Save the Children is in 16 countries. In 2010 it reached more than 194,000 children in Ethiopia and Mozambique. My main question for the Minister is whether DfID is adequately committed to working closely with the voluntary sector. Are the IPAPs—the international partnership agreement programmes, whereby DfID ensures continuity and funding over a given period—still in place?
The Global Fund has a remarkable record and DfID has been one of its leading advocates. Can the Minister say what proportion of Global Fund funding has been through the non-governmental agencies? I know that that is a difficult figure to arrive at but, if it could be as high as 20%, that would be an amazing achievement for the voluntary sector.
Lord Sheikh
My Lords, the Global Fund to Fight AIDS, Tuberculosis and Malaria is a truly worthy cause which has transformed the lives of many since its creation in 2002. Programmes supported by the global fund have provided AIDS treatment for 3.3 million, anti-tuberculosis treatment for 8.6 million and 230 million mosquito nets for the prevention of malaria. It has also approved over £14 billion for programmes in 150 countries. The global fund works in collaboration with other bilateral and multilateral organisations to supplement existing efforts in tackling the three diseases. The factors I find most appealing about the global fund model are the concept of country ownership and performance-based funding. It is making a direct contribution to the fulfilment of three millennium development goals, which cover child health, maternal health and combating HIV/AIDS.
Noble Lords will be aware that the global fund was plagued by scandals involving corruption and the misappropriation of funds which caused some countries to temporarily suspend payments. It was necessary to implement structural and management reforms. The global fund has recognised the need for there to be transparency and the need to root out corruption and malpractice.
The global fund has now made efforts to achieve greater efficiency by streamlining its operations through creating small departments with particular remits. Disease management committees meet once a month, including partner countries, to assess progress. The global fund also monitors the results of its direct investments in the 150 countries. I sincerely hope that this will provide comfort to some taxpayers who are doubtful about the merits of international aid.
The UK is the global fund’s third largest donor. Last March, DfID’s multilateral aid review rated the fund as one of the highest-performing multilateral organisations, which gave “very good value” to the taxpayer and had,
“very high standards for financial management and audit”.
It is for this very reason that I feel Britain should increase its contribution to the global fund over and above the current £384 million pledge over three years. If we increase our contribution, it will also help to attract greater financial support from other countries. I therefore ask the Minister to tell your Lordships’ House whether there are any plans to increase our contribution to the global fund.
Lord May of Oxford
My Lords, I, too, thank the noble Lord, Lord Fowler, for this characteristically excellent debate. My contribution is essentially a statistical appendix to some of the earlier statements, particularly those of the noble Baroness, Lady Hayman. I also declare a professional interest: my contribution is an attempt at a three-minute précis of my one-hour opening keynote to the International Congress of Parasitology in Glasgow six years ago.
We all know that the better understanding of biomedical things has lengthened lives in both the developed and developing worlds, but what actually is the pattern? A recent study shows that in rich countries about 7% of mortality is associated with infectious diseases. Only one of those seven percentage points is covered by TB, HIV and malaria. In the developing world, by remarkable contrast, 57% of mortality and morbidity arises from infectious diseases, and 16 of those 57 percentage points—two in seven—are the big three that are currently centre stage.
The neglected tropical diseases that my noble friend Lady Hayman referred to have many manifestations. First, a study of research in the four major medical journals shows that something like 12% of papers deal with diseases of the tropics; the British journals are better than the American ones, I would say. Not surprisingly, perhaps, of the 1,233 new drugs licensed world wide from 1975 to 2000, only 13—less than 1%—were for tropical diseases. Of those, five were accidental by-products of veterinary studies; only four were actually targeted deliberately.
Why is that? Only 1% of the global expenditure on drugs and vaccines comes from Africa. Only another 1% of it comes from the Middle East. Even south-east Asia and China account for only 7%. We are focused on diseases of the rich. We need to change that perspective.
In conclusion, not everything is biomedicine. The millennium development goals focus on maternal health and infant health. It is increasingly clear that smaller families work towards delivering both those goals. We are seeing declining birth rates as more women are educated, and we see more demand for access to non-coercive fertility control. Against that background, it is obscene that US legislation forbids any advice on contraception under work sponsored by government funds. It is even more obscene that the Vatican has an arm explicitly dedicated to communicating untruths about the inefficiency of condoms against HIV. In short, we are doing well but we could do a hell of a lot better.
Lord Hunt of Kings Heath
My Lords, it is a great pleasure for me to wind up for the Opposition on this very important Question. In the unavoidable absence of my noble friend Lady Kinnock, I, too, congratulate the noble Lord, Lord Fowler, on his commendable efforts tonight and on his long-standing and excellent record in this area.
We heard a very important contribution from the noble Lord, Lord May, which I hope that the Minister will be able to respond to. I also commend the noble Baroness, Lady Masham, for the remarks that she made. She reminded us that, although tonight we debate the global challenge of HIV, TB and malaria, we have a challenge in this country. She mentioned my own city, Birmingham, and a very tragic TB case. The trust that I chair runs one of the clinics involved. I want to tell her that I very much take her point to heart. Just as tonight we support the Global Fund in its worldwide efforts, it is very important in Birmingham that all of us get our act together to make sure that we deal with issues in relation to HIV and TB in an effective way.
The previous Government gave tremendous support to the fund and I echo my noble friend’s remarks on that matter. But so, too, we commend Mr Mitchell for the work that he has done. I hope that in the spirit of all sides of the House coming together, the Minister will be able to give us good news when she comes to wind up the debate.
As the noble Lord, Lord Fowler, said, much has been done by the fund but much more needs to happen. There is real concern about the decision that the fund had to take to cancel Round 11 of the funding grants in November 2011. There were various reasons for that, which we have heard about, such as the global economic downturn and the issue about fraud, which was exposed in part, as Aidspan has argued, because the fund has a commendable commitment to anti-corruption and transparency. As the Minister will know, the fund has moved swiftly to implement a programme of reform. Her noble friend has already told the International Development Select Committee that his department would announce new funds as soon as they were confident that the money would be well spent.
Clearly the Global Fund has to do more, but it has moved very quickly in the past few months. I simply ask the Minister whether she will prevail on her right honourable friend Mr Mitchell to be able to make an announcement very soon. That would be a fitting conclusion to this excellent debate.
Baroness Northover
My Lords, I thank my noble friend for securing this debate on the Global Fund to Fight AIDS, TB and Malaria. My noble friend’s record in this area is second to none, as the noble Lord, Lord Hunt, indicated, and he introduced this debate very powerfully. I, too, pay tribute to the Terrence Higgins Trust on this, the 30th anniversary of Terrence Higgins’ death.
As many noble Lords have said, the Global Fund has accomplished much, but there is still much to do. It was founded to increase funding on a massive scale to change the course of AIDS, TB and malaria, and in its first decade results have been dramatic. The fund has become the largest multilateral funder of programmes addressing the health-related MDGs. It has approved more than $23 billion for more than 150 countries.
The UK Government—this and the previous one—have been a major supporter of the fund. In 2007, they pledged up to £1 billion between 2008 and 2015. They have consistently brought forward and increased their commitments to live up to this pledge. Recently my right honourable friend the Secretary of State for International Development confirmed that the Government would commit £128 million this year, next year and the year after. That means that we will meet in full, and a year early, the 2007 pledge to make the UK the fourth largest donor to the fund.
More than 3.3 million people in the world's poorest countries are receiving life-saving and life-prolonging antiretroviral treatment through the fund. Ten years ago, there were almost none. The fund has helped to detect and treat more than 8.6 million new cases of infectious TB and has delivered 142 million malaria drug treatments and more than 230 million insecticide-treated bed nets, saving an estimated 6.5 million lives.
Prices for first-line HIV treatment have fallen dramatically, from approximately $10,000 per patient per year in 2000 to $125 in 2009. The fund has played a major role in shaping the market. New research suggests that treatment can also play an important role in prevention, and we have the opportunity to eliminate the transmission of HIV from mothers to children and to eliminate malaria in many endemic countries.
More than 33 million people live with HIV. There were 2.7 million new infections in 2012. Globally, the number of new infections is falling, but that hides regional disparities and, for every person put on treatment, two others become newly infected. According to the WHO, fewer than half of the 19 million people who need ARV treatment receive it.
Over the past few years, there has been significant progress in reducing deaths and illness due to TB, and 187 countries implement the WHO treatment guidelines. That has resulted in a decline of one third in deaths associated with TB since 1990. But the global burden remains significant and TB caused the deaths of 1.7 million people in 2009. There remain challenges: getting people to complete the long course of treatment; responding to drug resistance, as emphasised by the noble Baroness, Lady Masham; and HIV/TB co-infections. On drug-resistant TB, through DfID’s support, 13 low-income countries with a high burden of TB now have state-of-the-art testing laboratories to detect multidrug-resistant TB. We also know that the issue is increasingly important within the United Kingdom.
Malaria is preventable and treatable. Insecticide-treated bed nets, indoor residual spraying and new artemisinin combination therapies (ACT), together with better diagnostic technologies and new vaccines under trial potentially give us powerful tools to combat this disease. Improvements in child and maternal health have been achieved. But there are many hard-to-reach people in fragile and conflict-affected regions, and drug and insecticide resistance pose real challenges for the future. That is an area where DfID is investing. I assure the House that that is a significant investment. Those were issues raised by the noble Lords, Lord Rea and Lord Boateng.
The fund remains critical to the fight against the three diseases. The UK's Multilateral Aid Review, as noble Lords have said, assessed the fund as providing very good value for money, but identified the need for serious reforms. My noble friend Lord Fowler and others referred to some of the issues that have arisen in recent times. In September 2011, a high-level independent review panel recognised the achievements of the fund but identified significant areas for improvement and reform. It argued that the fund needed to transform from an emergency to a more sustainable response to the three diseases. There is cross-over between these three diseases and others such as the so-called neglected tropical diseases to which the noble Baroness, Lady Hayman, referred. We have seen a knock-on benefit from investment in the three diseases in bringing down other diseases as well.
The Government have strongly advocated reform of the fund: a DfID official, in his personal capacity, chairs the board, and the UK continues to take a close interest in the fund and to lobby others to achieve the necessary changes. In November last year, a new strategy for the fund was approved. This challenges the fund to invest more strategically, in the way that the noble Lord, Lord Parekh, referred, and to provide better support to improve implementation at country level, to promote and protect human rights, and to raise money.
At the same time, there was considerable uncertainty over the financial position of the fund, which noble Lords mentioned. The board decided that it could not move forward with round 11, but in response to concerns that people then flagged up—that people would suffer as a result—it agreed transitional funding. I am pleased to tell the noble Lord, Lord Fowler, that the fund board has decided to accelerate funding decisions to spring 2013 and it still plans to spend between $9 billion and $10 billion during 2012-2014. The board also decided to bring in new, interim leadership to transform the organisation, and we are pleased that significant and rapid progress has been made. I note with interest what the noble Lord, Lord Parekh, said about strategically sharing expertise. He is right to look at the fund’s activities in that strategic sense.
The fund also needs to think about where it works. Much remains to be done in low-income countries but there are particular challenges elsewhere. Nowhere is the spread of HIV/AIDS more rapid and aggressive than in eastern Europe and central Asia. As my noble friend Lord Fowler said, Ukraine has done almost nothing to address the challenges of HIV spreading among injecting drug users. Civil society organisations, often funded by the global fund, play a crucial role, as he emphasised.
In responding to a number of other points, I assure my noble friend Lord Fowler that the UK’s drug strategy 2010 acknowledges the value of needle and syringe programmes. I am very happy to emphasise that. The noble Lord, Lord Black, and other noble Lords are quite right about the importance of addressing stigma, an issue on which the noble Lord, Lord Fowler, has been at the forefront throughout his own work. The noble Lord, Lord Black, may wish to note the commitment to human rights in the fund’s strategy.
In response to the noble Earl, Lord Sandwich, the noble Lord, Lord Parekh, and other noble Lords, I say that 33% of the fund’s disbursements are to civil society. The noble Lords, Lord Rea, Lord Fowler, Lord Lexden, and Lord Sheikh, and other noble Lords, asked about the uplift in commitment. The Government are looking for clear evidence in key reforms so that they can make sound judgments in early 2013 on future funding increases in 2013 and 2014. I have given the commitments that are already in place, so I am talking here about that increase.
I thank noble Lords for their tributes to DfID for its support in this area but also for making sure that money will be well spent, as the noble Lord, Lord Hunt, and other noble Lords pointed out. The noble Lord, Lord May, focused on the absence of research into new drugs for neglected tropical diseases. It is certainly very important in the control of neglected topical diseases, and others, that research is carried out. I think he will be aware of the initiative that DfID announced, putting £21.4 million into that up to 2013.
In conclusion—I know noble Lords are desperate to get back to the Crime and Courts Bill—I emphasise that the Government will continue to support and monitor progress in the Global Fund. We have already confirmed that the UK will live up to its financial commitments. I confirm again that a significant uplift is also possible, subject to continued progress. We are optimistic in terms of the reforms that have been taken through. We recognise how the Global Fund, in 10 years, has transformed the prospects of millions around the world who were suffering from these three terrible diseases. However, we and the fund know how much more there is to achieve, which is why this debate is so timely.
Crime and Courts Bill [HL]
(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rosser
“(6A) In the UK Borders Act 2007, in section 48 (establishment) after paragraph (2)(b) insert—
“(c) practice and procedure in facilitating the entry into the UK of all bona fide EU and other passport holders, in monitoring of waiting times for processing of incoming passengers at fixed control points, and in processing passengers on international train services between the nearest stations served on each side of the border.””
Lord Rosser
My Lords, my noble friend Lord Berkeley is not here but I will take the opportunity to move his amendment, if only to hear the Minister’s reply. This amendment seems to address some of the concerns covered in the previous group, but relates to international rail services and the problem of delays to passengers on the Eurostar services caused by new immigration controls. It also sets out how that might be addressed. The amendment contains a number of proposals and appears to suggest a policy of facilitating and welcoming visitors rather than treating everyone in perhaps a less than friendly manner as a result of some of the delays which I understand occur on the Eurostar services at both Brussels and St Pancras. The amendment also refers to the monitoring of waiting times to process incoming passengers at fixed control points. It also talks about processing passengers on international train services between the nearest stations served on each side of the border.
I believe rather than know that there have been meetings between my noble friend Lord Berkeley and the Minister in which the issue of processing passengers on the train—which is perhaps a rather unfortunate phrase—might have been raised. The amendment also raises that issue. We are now part of an expanding high-speed rail network with the introduction of new routes using the Channel Tunnel and the prospect of new operators entering the field.
I think that I am right in asserting that there are significant issues with delays, certainly with Brussels-to-London traffic, which I think are caused in part by double passport checks on passengers at both Brussels and St Pancras, where, I am told, delays can be over an hour. If that statement is right—and I am sure that the Minister will correct me if it is not—it could be damaging to our image as a country and to our economy as it would have an adverse effect on tourism and on the UK as a base for new and expanding businesses.
I am absolutely sure that my noble friend Lord Berkeley would have had a great deal more to say, and that he would have said it an awful lot more effectively than I have, but if I am right in saying that the Minister has had meetings with him, I hope that the Minister will also be able to say where we are on the issue. Perhaps he could also say whether the issue of processing passengers on the train was raised with a view to eliminating some of the delays that are currently occurring. I beg to move.
The Minister of State, Home Office (Lord Henley)
My Lords, I will be relatively brief on this. I can give an assurance to the noble Lord that I have discussed this with his noble friend Lord Berkeley. I also welcome him back to this Bill from his travails on the Civil Aviation Bill. This amendment is, in effect, about the remit of the chief inspector. I think that I can give the noble Lord an assurance that this is all largely dealt with by Section 48 of the UK Borders Act 2007. I have a copy of Section 48 and could go through it in some detail but I do not think that the noble Lord or the rest of the Committee would welcome that. I will just say that the remit of the chief inspector is adequately dealt with in that and he can cover all those matters.
As the noble Lord said, I have had a meeting with his noble friend Lord Berkeley at which we discussed a number of issues, particularly the so-called Lille loophole; the problems coming into St Pancras, problems that we are aware are likely to get much worse when other services, such as the German trains, start coming in, just because of the physical layout of St Pancras; and how we deal with that. We also discussed—again, this is very important—the possibility of using immigration officers on the train to deal with the particular problems that the noble Lord quite rightly highlighted. That is something that we will have to look at for the future, beyond 2015, which is when Deutsche Bahn is likely to start bringing trains in.
Lord Rosser
I will be brief. I thank the Minister for his reply which I am sure will be read by my noble friend Lord Berkeley with interest and I beg leave to withdraw the amendment.
Lord Henley
(c) in connection with the prevention, investigation or prosecution of any of the following offences (insofar as that does not involve the exercise of a function which falls within paragraph (a) or (b))—(i) an offence under section 26(1)(a), (b) or (g) of the Immigration Act 1971 (refusal or failure to submit to examination or to furnish information etc, or obstruction of immigration officer);(ii) an offence under section 22 of the UK Borders Act 2007 (assaulting an immigration officer).”
Lord Henley
My Lords, I shall also speak to Amendments 151 to 154. I have written to the noble Baroness, Lady Smith, but I shall explain briefly to the Committee what the amendments do. They are essentially technical and drafting changes to provisions in Clause 26 and Schedule 14.
Amendments 150, 151 and 152 better define what is meant by an immigration offence within the context of Sections 136 to 139 of the Criminal Justice and Public Order Act 1994 and the Criminal Law (Consolidation) (Scotland) Act 1995, with which I am sure all noble Lords will be very familiar. The former allows immigration officers to exercise cross-border powers relating to warrants, arrest and search. The latter establishes a power of detention and arrest for immigration and nationality offences in Scotland. The amendments expand on the original wording which might, if given a narrow construction, have been read to limit the powers of immigration officers to dealing only with foreign nationals entering, residing in or transiting the UK. It is intended to encompass immigration enforcement offences, comprising offences of assaulting or obstructing an immigration officer, or failing to submit to, or produce documents requested during, an examination.
Amendment 154 relates to the provision of legal advice. Among other things, Clause 26 and Schedule 14 ensure that those detained on suspicion of having committed an immigration or nationality offence in Scotland are automatically eligible for publicly funded legal advice. However, as a corollary to this, a duty needs to be placed on the Scottish Legal Aid Board to ensure the availability of solicitors to provide such advice. The amendment makes the necessary change to the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 to provide for this.
Amendment 153 simply corrects a drafting error in Clause 26(13). I beg to move.
Lord Henley
““immigration enforcement offence” means any of the following offences (insofar as they are not immigration or nationality offences)—
(a) an offence under section 26(1)(a), (b) or (g) of the Immigration Act 1971 (refusal or failure to submit to examination or to furnish information etc, or obstruction of immigration officer);(b) an offence under section 22 of the UK Borders Act 2007 (assaulting an immigration officer);”
Lord Henley
“(4) Regulation 3(1)(b) of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 (duty solicitors: advice for suspects) applies in relation to a person to whom section 25A of the 1995 Act applies by virtue of its amendment by paragraph 46 of this Schedule; and, accordingly, in regulation 3(1)(b), after “customs” insert “, immigration and nationality”.
(5) But regulation 3(1)(b) does not have effect in relation to such a person in a case where—
(a) the person is detained under section 24 of the 1995 Act, and the period of detention began before the time at which paragraph 46 of this Schedule comes into force; (b) the person attends as mentioned in section 25A(1)(d) of the 1995 Act, and the period of attendance began before that time; or(c) the person is arrested and detained as mentioned in section 25A(1)(e) of that Act, and the arrest occurred before that time.(6) Sub-paragraph (4) does not affect the application of regulation 3(1)(b) in relation to a person to whom section 25A of the 1995 Act applies otherwise than by virtue of its amendment by paragraph 47 of this Schedule.
(7) Sub-paragraphs (4) to (6) do not prevent regulation 3(1)(b) from being amended or revoked by exercise of any power conferred by the Legal Aid (Scotland) Act 1986 or any other power.
(8) In this paragraph “1995 Act” means the Criminal Law (Consolidation) (Scotland) Act 1995.”
Baroness Hamwee
Baroness Hamwee
My Lords, perhaps I may move Amendment 154ZA. I imagine that the noble Baroness, Lady Meacher, is somewhere on the estate panicking at this moment, but I am happy to move Amendment 154ZA and later she will be able to speak to her own amendment, which we discussed this morning. What I had to say on this group of amendments very much goes to her amendment, which is to leave out the reference to “controlled” drugs.
I do not for a moment condone driving while impaired by drugs—that is what Section 4 of the 1988 Act deals with. I should say that I am speaking for myself. I do not want to put words into the mouth of the noble Baroness, Lady Meacher, but I am apprehensive about legislation which may not be necessary, may not be sufficiently clear, may require technical tools which are not available and may cause more problems than it solves. If my fears are justified I think that the provision does not do justice to the victims of drug-driving and their families.
No doubt the Minister will give us information about the current level of prosecutions for driving under the influence of drugs, the success rate of the prosecutions and the reliability of the testing equipment. Reliability is not the whole of the issue, but is the technology and the equipment adequate? I understand, for instance, that oral swabs to detect drugs are affected by an outdoor setting. I ask this because, of course, errors can lead to unnecessary detentions, to legal challenge and, indeed, to injustice. My amendments largely go to whether the driver’s performance is impaired while unfit to drive through drugs, as Section 4 says—Section 4 is not being repealed—and whether a strict liability offence is appropriate.
There are many very commonly prescribed medicines and over-the-counter medicines which contain patient information in which, in literally small print, there are warnings against driving—I quote from one which I got out of my own bedside drawer—
“if you feel dizzy, tired or sleepy.”
They may refer to dizziness or light-headedness, saying:
“Do not drive if you are affected in any way”.
Some of these warnings are given as part of a warning about the effect if taken alongside other medication or alcohol. This suggests to me at least two problems regarding evidence: did the driver feel dizzy, tired, light-headed or whatever, and did the driver take other medicines? If the level is set at zero this will disqualify, for instance, thousands of people taking very common medicines that control, to take just one example, raised blood pressure. It does not mean that you cannot drive but it does not mean that you can, so the patient is left with a decision.
To answer a criticism before it is made: I believe in taking responsibility for oneself, but sometimes the sensible decision can be very difficult to arrive at. It will be very difficult to disprove impairment; presumably, that is why we are presented with strict liability. Under proposed new Section 5A(3)(b), the defence will be “to show” that the defendant took the prescribed,
“drug in accordance with any”,
and all “instructions”, which presumably means oral as well as written instructions. That seems fairly onerous. I acknowledge that the burden of proof is on the prosecution but there is initially an evidential burden on the defendant under subsection (3) of the proposed new section, which is subject to subsection (4). It all seems to require a lot of investigation and argument.
I have said that the difficulties may be compounded when a patient is taking new medication. Of course, the same may apply if the patient changes medication. Patients with chronic pain who are on a stable dose of a prescription or over-the-counter opioid analgesic may well be over the limit without impairment, while some may be impaired and some not because there is a variable impact on different people. I suggest that it is a fair bet that many of us take, and sometimes rely on, analgesics containing ibuprofen and codeine. They may enable us to drive—actually, they may enable us to drive a debate, given the ergonomic failings of these Benches—by being more in control than one can be if driving in pain. I say that from some experience.
I am quite conscious that parallels can be drawn with people who boast that they can hold their drink, and are quite okay to drive to collect the Sunday papers with an alcohol level that has not quite subsided from the night before, but what all this really amounts to is that prescribed and over-the-counter drugs do not lend themselves to this strict liability offence. There could be unintended consequences, such as the risk of spending a lot of police time on people who do not present a risk on the roads or, indeed, the risk of deterring people from driving who then become dependent on others.
My Amendment 154B proposes consultation with a number of bodies: with the Advisory Council on the Misuse of Drugs, where one is talking about controlled drugs and impairment issues; with the medical profession and pharmaceutical industry, for the reasons that I have mentioned and no doubt others; and indeed with patients. I am not concerned only with prescribed drugs. In the case of controlled drugs, we know that cannabis can be detected a long time after it has been taken and long after the effects have worn off. I do not believe that it would assist the cause of road safety if the application of a law such as this brought the law into disrepute. Finally, one can only too easily see that the police might stop a driver because of a suspicion of some small thing being wrong with their car—such as a failed brake light, which the driver may not be aware of—then test the driver and find a trace of a drug. It is not being too alarmist to say that this could become the new stop and search. I beg to move.
Baroness Meacher
My Lords, I must first apologise to the Minister and to my colleagues and thank the noble Baroness, Lady Hamwee, very much indeed for stepping into the breach. I completely misjudged the pace of your Lordships’ progress on the previous amendments.
I shall speak to Amendments 154ZA, 154ZB, 154CA and 154DA. I am encouraged by the fact that, perhaps for the first time, an attempt is being made to form legislation that tries to look across from drugs to alcohol and from alcohol to drugs, and to achieve some sort of reasonable comparison in the response to these drugs in relation to driving. Alcohol is of course one of the most dangerous drugs that people take. I endorse the Government’s commitment to try to find a fair and consistent way to control driving under the influence of drugs. This is overdue and important. There is no question that I would suggest that people can drive while under the influence of drugs; that would be inconceivable on my part.
The purpose of my amendments is to ensure that young people are not criminalised unless any drugs in their system really are causing impairment while they are driving. As the noble Baroness, Lady Hamwee, has suggested, there are several reasons why a driver may have a drug in their system but be entirely safe behind the driving wheel. One of my main concerns is that a very substantial minority of young people, as we know, take herbal cannabis. That is a relatively harmless thing to do—I emphasise relatively. It is much better that young people do not take cannabis or drink, or smoke, but we know that the great majority of them will do at least one of those. It is possibly better that they take a bit of herbal cannabis on occasions, so long as they do not do it too often, rather than smoke tobacco or drink alcohol. I must emphasise that skunk is a completely different matter.
I understand that the active ingredient, THC, disappears and has a short life in the body, as the noble Baroness, Lady Hamwee, said, whereas the safe and perhaps even positive ingredients of the cannabinoids, which could improve driving, can remain there for some considerable time—perhaps many weeks. This legislation could lead to the criminalising of considerable numbers of young people who took cannabis at a party several weeks before and are then stopped for some minor reason. Traces are then found in their body of the cannabinoid, which have nothing whatever to do with the quality of their driving. I know that the Minister is perfectly well aware of these problems, and I hope that he will take them into account. I would be grateful for the Minister’s assurance to the House on this matter.
I want to explain my Amendment 154ZA, to leave out the word “controlled” from new Section 5A(1(b) in Clause 27. There are at least two strong arguments for doing this. The distinction between controlled and uncontrolled drugs is not evidence-based. Alcohol and tobacco, as we know, are far more dangerous than some drugs that are controlled under the Misuse of Drugs Act. Any evidence-based legislation—which I understand this is designed to be—should not reference the outdated and discredited Misuse of Drugs Act. I applaud the Minister for insisting that this is road safety legislation; it is not about controlling drugs, it will be evidence-based, and I know that a lot of work is going on behind the scenes to make sure that that is so. However, we do have a problem with cannabis, and we need to hold on to that. In discussing cannabis, I should make it absolutely clear that I support the control of cannabis supply, but I hope that we can reach a point where the method of control—possibly some form of regulation—could be based on the evidence of the relative efficacy of different forms of control.
My second point is that a number of the so-called legal highs, or new psychoactive substances, are the drugs that may prove far more of a risk to drivers. Of course, these are controlled through temporary bans, but as Ministers and everybody else know, as soon as one of these drugs is controlled, the creators of these substances get back into their labs and create some new ones by changing a few molecules, and for a while those substances will be legal. There is, therefore, no rationale for limiting this legislation to controlled drugs, because drugs that are not controlled cause just as many problems, if not more.
I will now turn to Amendment 154ZB, where my objectives are twofold. First, it would ensure that there is a good reason for police involvement, either that the police are responding to a road accident, or that the roadside evidence suggests that the driver is impaired and that this may be due to alcohol or a drug in their system. I understand that as regards any drug where a specified limit within the driver’s blood or urine cannot be identified—above which it would be safe to assume impaired driving capacity—these cases will be dealt with under the existing Road Traffic Act. Nevertheless, I would be grateful if the Minister could give the House an assurance that under this legislation a driver will not be charged for driving under the influence of drugs unless there has either been a road traffic accident or there is roadside evidence of impairment, that the driver is not taking prescribed medication, and if the level of the drug in the driver’s blood or urine is above the level approved in regulations as presenting no threat to road safety.
I will explain paragraph (c) of Amendment 154ZB. I am concerned that the legislation could cause the inappropriate arrest and charging of patients prescribed medications for chronic pain and other long-term conditions. In particular, patients on a stable dose of opioid and analgesia may—according to Napp Pharmaceuticals—have no impairment of their ability to drive safely compared with other drivers who have taken similar quantities, or perhaps even far less, of that opioid. Apparently, the body simply adjusts to higher and higher levels of opioid, so you could be pretty heavily drugged and yet a perfectly safe driver. Therefore, without some way of dealing with these opioid prescriptions and people on those prescriptions, very unwell people who are suffering a lot of pain could be unnecessarily arrested, charged, taken to a police station, put in a cell and left there to wait for a forensic physician to come in and do a full examination, and so on. It would be a huge distress and greatly upsetting, and would also use a lot of police resources. I hope that the Minister can somehow give an assurance to the House that this issue will be very clearly dealt with.
I will quickly turn to amendment 154CA. My concern here is that new Section 5A(9) of Clause 27 appears to respond to the North report recommendation that:
“If … it should prove beyond scientific reach to set specific levels of deemed impairment, the Government should consider whether a ‘zero tolerance’ offence should be introduced in relation to”—
a list of controlled drugs. I would be grateful if the Minister could assure the House that a zero-tolerance approach will not be introduced in relation to cannabinoids—because this would be the temptation. It will be difficult to establish this limit for these drugs, because of the longevity of the survival of the cannabinoid in the blood. It would be helpful at this stage if the Minister can give us some assurance of that, and also give some indication, if possible, about the drugs that the Government have in mind for zero-tolerance treatment.
Finally, Amendment 154DA is a consequential amendment, and I will not say anything about that. In conclusion, I hope very much that the Minister will accept the principles behind these amendments—although I fully recognise that I put them together myself, and I am certainly no lawyer. If I brought them back on Report I would undoubtedly wish to change the wording therein.
Baroness Smith of Basildon
My Lords, on this clause the Committee has benefited from the contributions of the noble Baronesses, Lady Hamwee and Lady Meacher. Looking through the clause, I found this issue difficult. It is very easy to identify the problem, and we want to address it and resolve this issue. No one wants to see people driving under the influence, whether of drink or drugs, or in an impaired state or the problems that that can cause, but we have to construct legislation that addresses that issue but at the same time does not penalise unnecessarily strictly or inconvenience those at whom it is not aimed. There is a danger that this legislation could have an impact beyond what is intended. Both noble Baronesses indicated that.
When I looked at this clause, what struck me—and listening to the debate has reinforced that feeling—is that this is work in progress. We fully support what the Minister is trying to achieve. I know that he is not particularly wedded to this wording and would be happy to look at ways of making sure that it achieves its aim. Our amendments are probing amendments, but they deal with significant issues. They provide an opportunity to look at the wider concerns. I was able to let the Minister know of some of my questions, and I apologise that I have others because while I looked at the clause more questions arose—I had more questions than answers when looking at it. I would be very happy to have some responses this evening and some in writing so that when we get to Report, we can give this further consideration.
Clause 27 introduces the new offence of drug-driving above a specified limit. It will sit alongside the offence of being unfit to drive while under the influence of drugs in the Road Traffic Act, as has already been mentioned. The difference is that that offence requires proof of impairment to be guilty, but this new offence does not. It relates only to controlled drugs because we specify those drugs in secondary legislation, not in this legislation. The limits for each drug covered by the new offence have to be specified in the regulations. If I understand subsection (9) of the new section, which the noble Baronesses, Lady Meacher and Lady Hamwee, referred to, the limit could be set as low as zero, which creates some difficulties. The BMA stated:
“Drugs have a variable impact upon the measurable skills needed to drive safely, between individuals and at different blood levels”.
Yet the Explanatory Notes state:
“For some controlled drugs … it may not be technically possible to determine a level which impairs most people’s driving. This may be, for example, because tolerances vary widely in the population, or because the drug is often taken in conjunction with other drugs and is associated with abuse or risk-taking behaviour”.
The Explanatory Notes highlight some of the difficulties in getting this right.
The noble Baronesses spoke about the problem with the zero-tolerance approach—the difficulty of determining the appropriate impairment level risks decoupling the defence from the crime. A blanket ban on certain drugs that can be medicated could also seriously impact the standard of life of people on long-term medication as well as on people’s attitudes towards, and their compliance, with the treatment they require should they be prohibited from driving as a result of it. The difficulty is to look beyond the immediate offence to the impact it would have if somebody was worried that they would not be able to drive if they took certain controlled drugs on prescription. They might, therefore, on occasion not take their medication in order to drive.
In relation to medication classified as a controlled substance, as the legislation stands, individuals would be required to prove that they had a medical or dental prescription and that they took the drug in accordance with the doctor’s and the manufacturer’s or distributor’s directions. In reading the Bill, I was unclear about whether individuals who are unable to prove that they have a prescription for their medication would be required to attend a police station or would have a number of days in which to produce that evidence.
The Government have not been able to indicate how they intend to prove whether an individual has taken a drug in accordance with the medical directions—that is subsection (3) of the new section proposed in Clause 27. Would an individual be guilty of an offence if they have deviated, even only slightly, from the instructions? For example, the prescription may say to take the drug every five hours and on that occasion the patient took them within two hours because they had been out and had dinner or had forgotten. If we have it in legislation that they have to take the drugs according to the manufacturer’s and prescriber’s instructions, any deviation from those instructions could be a criminal offence.
Lord Henley
My Lords, the noble Baroness is an eternal optimist if she thinks that we will have everything ironed out by Report stage but I am grateful for that optimism. I am also grateful to her for giving me a list of the various questions that she wanted to ask and then putting forward another list of slightly more detailed questions, not all of which I can begin to answer. It will become clear why it is neither possible nor necessary to answer them now. This is probably just the first stage in quite a long discussion that will take place in this House and the other House so that we can get these matters absolutely right.
I am very grateful that the noble Baroness, Lady Meacher, made it in time. At one point I thought that her amendment would not even be moved. It is very important that we have the first discussion—it is only a first discussion—on this clause. I agree with her that this is a road safety issue. It has nothing to do with other drugs issues. She and I will discuss those in other arenas on other occasions. The important point to remember is that anyone who is impaired as a result of using drugs, whether controlled or uncontrolled, can commit an offence under Section 4 of the Road Traffic Act 1988.
In responding, I shall try to keep a very complicated issue as simple as possible. For that reason, those who are old enough—even in this House, that does not necessarily mean everyone—should remember what it was like pre-breathalyser in relation to one drug, namely alcohol. The noble Lord, Lord Dear, was probably a young policeman at the time. There was an offence of driving while impaired by alcohol but it was very difficult to prove. There were all sorts of methods by which one could try to do so. We probably have to go back to the Wilson Government of 1964 when Barbara Castle was Secretary of State for Transport and, as a result of legislation, the breathalyser was introduced. The idea was that you did not have to show that you were impaired; you were deemed to be impaired if you were over a certain limit—that is, if there was so much alcohol in your blood. That has proved very effective over the years.
I do not have the figures in front of me for the number of deaths, other casualties and accidents over the years. However, we have seen not only a massive decline in those but quite a big cultural shift in people’s attitudes to drink-driving. People take much greater care about not being over the limit, as they put it, even though they might think that they are still capable of driving. In other words, people accept that being at the limit means that they are impaired.
In Clause 27 we are trying to do something similar with drugs. However, as I said, on an issue that we want to keep very simple, this is going to be very difficult indeed. All noble Lords who have spoken in this debate—and, I imagine, all those listening as well—will accept that we are dealing with a whole range of different drugs. There are controlled drugs and uncontrolled drugs—a vast array of over-the-counter drugs, which people take for colds or whatever, that we all know can impair driving, and people should be careful whether they take them. I have even seen on a bottle of cough mixture for my children when they were very small, “Do not drive heavy vehicles after using this”. I am not sure why my children were likely to be driving heavy vehicles or heavy machinery after taking some cough mixture, but there is often such advice with medicine. Whether a drug is controlled or uncontrolled, it will still be covered by Section 4 of the Road Traffic Act 1988.
Clause 27 is trying to deal with the controlled drugs at this stage, and we need expert advice on that. Noble Lords who have spoken will also be fully aware that we have set up an expert panel to look at this. I do not have the list of names in front of me, but everyone will know that the people dealing with this matter are very eminent in their field. They will have to work very hard to find ways of defining the appropriate drugs and the appropriate limits. Because of the way we have drafted the Bill at the moment, there might have to be zero tolerance with some drugs, but I note the points that the noble Baroness made, particularly about cannabis and other drugs and how long they stay in the bloodstream. I accept that it is difficult, but we want to wait and hear the advice from the panel. I very much hope that we will have some initial advice before we get to Report. As I said, we are in this lucky position of having Report delayed somewhat until, I imagine, late in October or the beginning of November, so it does give us time to see what comes out, to listen to what the panel has to say and to have further discussions.
Again, we are at that happy stage of the Bill starting in this House and we have the joy of discussing it, but it can go on to another place. Even in another place they sometimes discuss these things seriously and in great detail, as the noble Baroness knows from her great experience there. We have time to get this right and make sure that we have the right procedures in place. In response to the points made by my noble friend Lady Hamwee, we want to make sure that there are appropriate defences for those who have taken over-the-counter medicines inadvertently or incorrectly, or for those who are on prescribed drugs from their doctor—for example, in the case of a statutory offence of someone who takes controlled drugs for medical reasons. We need to look at all these issues.
At the same time, we want to make sure that the expert panel can offer advice about setting appropriate levels for whatever drugs we decide to include in the interests of public safety. I go back to the first point made by the noble Baroness, Lady Meacher—that this is a road safety issue first and foremost. For some drugs, we might have to say that zero is the only safe limit, but we want to wait until we get advice from the experts in this field because, however knowledgeable we are, we are not the experts and we need to listen to that in due course.
I said that I was trying to keep a very complicated issue as simple as possible at this stage, because all I wanted to do was set out what we were trying to do and what the problems are. I hope that between now and Report we can have further discussions about this, and I certainly hope to involve colleagues in the Department for Transport, because I think that they should be involved. This is not a Home Office issue; it just happens to be in a Bill that the Home Office is taking through the House. Others might be involved, and I hope they want to be.
Baroness Smith of Basildon
The Minister’s alcohol analogy is a useful one, although the caution that I would place on that is that testing for alcohol is testing for one drug. As he said, there is an almost unlimited number of drugs to be tested in this case. His comments have reassured me that the matter is being taken seriously and that he recognises that it is a work in progress. However, I am always slightly concerned—alarmed is too strong a word—when the Minister refers to matters coming back to this place and says that we do not have to worry if we do not get it completely right because it then goes to the other place as well. I am glad that he is shaking his head. That is not what he meant, but it has happened a couple of times in the course of this Bill. There is an obligation on us to get it as right as we possibly can. I know that we are not experts—I do not think that I am an expert in anything—but we are legislators or we are advising on legislation, and it is incumbent on us to ask the kind of questions that have been raised today. We need assurances that we will have the answers to those questions before the legislation goes to the other place. If we had answers to those questions before we pass legislation through both Houses, and when this House passes its advice to the other House, we could in all confidence say that we know that we have the procedures in place for this offence to protect people as we think it should.
Lord Henley
My Lords, if I put the matter in the terms described by the noble Baroness, I should not have done. We want to get it right and we shall try very hard to do so, but we need that expert advice. That is why I hope that we will have the beginnings of the expert advice from the expert panel before Report stage. At this stage, I was trying to make it clear that it was the beginnings of a discussion on a very simple idea, although it does not sound simple. The noble Baroness is right to say that we have had it very easy with alcohol, because it is just one drug and we have just one limit. We are now talking about lots of drugs—controlled, legal or illegal—and where we put the limits. It is going to be very complicated, so we want to listen to the experts and have further discussions.
Baroness Meacher
I thank the Minister for his response and openness to further discussions. Can he give a commitment that, if at all possible before Report, we could have an opportunity for some feedback from the expert panel and a discussion with it about the implications of its preliminary findings?
Lord Henley
I can never give an absolute commitment in relation to an expert panel discussing these things, because I cannot put a gun to its head about how it should proceed. However, I would very much welcome a chance for some sort of informal seminar among noble Lords interested in these things in the early days of October. That might be a useful way in which to take these things forward. I see a nod from the noble Baroness, Lady Smith, and, no doubt, also from the noble Baroness, Lady Hamwee. I look forward to it. Tea and coffee will be available on that occasion at some time in October.
Baroness Hamwee
My Lords, we are being offered caffeine.
It is interesting that those of us who have spoken on this are not opposing the underlying proposition. We are all looking at it as a road safety issue, but we want to get it right. Although I welcome the Minister’s optimism about ironing out the problems, I said to him in the break earlier this evening that the months of the summer recess have a habit of disappearing awfully fast and October will be on us quite quickly. More seriously, I express some concern about being asked to deal with this hugely important and complicated issue while work is still going on.
I do not think it is appropriate to seek to make a lot of points now as I am sure we will come back to this on Report. I had already written down “meeting ?”, but I was thinking that something more than a meeting, such as a roundtable discussion, might be needed so that we can swap ideas and get questions answered. I am sure that there are more questions than have been raised tonight. My noble friend Lord Thomas of Gresford has been muttering to me about evidence and burdens of proof—I did mention burden of proof—and how the prosecution would deal with the issues. Bringing together the medical and the legal would be extremely helpful. I am grateful to the Minister for his suggestion. I will bring the biscuits.
I beg leave to withdraw Amendment 154ZA.
The Deputy Chairman of Committees (Lord Geddes)
I understand that the amendment is in the name of the noble Baroness, Lady Meacher, although the noble Baroness, Lady Hamwee, moved it. Does the noble Baroness wish to speak?
Baroness Meacher
My Lords, I am advised that I must withdraw my amendment so I withdraw it.
The Deputy Chairman of Committees
The noble Baroness, Lady Hamwee, if I may say so, has beaten you to the draw.
Lord Mawhinney
“Public orderPublic order offences
(1) Section 5 of the Public Order Act 1986 is amended as follows.
(2) In subsection (1), for “abusive or insulting” in the two places where it occurs there is substituted “or abusive”.”
Lord Mawhinney
My Lords, I have been sitting here contemplating that it falls to me to move the last amendment, at the end of a long day, at the end of six days of Committee. I wondered whether it was more appropriate to say “better late than never” or “last but not least”.
At least this amendment has the virtue of simplicity. We have had some fairly heavy and complicated amendments to deal with today. This one is dead easy. It is about freedom of expression. All of us would say that we are supporters of freedom of expression. I stake my latest colours to the mast: I had the privilege of chairing the Joint Committee on the Draft Defamation Bill and one of our very first recommendations said:
“We recommend that the Government has particular regard to the importance of freedom of expression when bringing forward this Bill”.
I think the best definition of freedom of expression falls to a learned opinion given by the noble Lord, Lord Macdonald of River Glaven, who was a distinguished DPP and is a cosignatory to this amendment. He is overseas tonight and not able to take part in this debate. He wrote, in an opinion that I do not think has been seriously challenged legally, about removing the word “insulting” from Section 5 of the Public Order Act 1986:
“Freedom of expression constitutes one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to Article 10 (2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.
Those last words are very important.
This is the second time in just over a year that Parliament has been invited to remove the word “insulting” from Section 5. Edward Leigh MP tabled such an amendment in the other place in May 2011. The Government, in the form of James Brokenshire MP, promised a public consultation, which indeed was launched on 13 October last year and closed on 13 January this year. That, plus the handling of the Bill in the Commons, meant that the other place never got around to pursuing an amendment to Section 5.
As your Lordships will know, the guidance is that the Government should respond within three months to a public consultation. We are now heading towards six months and, as of two days ago, the Government still had not responded. The Minister then promised conclusions “as quickly as possible”. It is probably worth taking a minute to ask ourselves: what is the problem that is constituted by the inclusion of the word “insulting” in Section 5?
Four very brief examples will illustrate the problem. An Oxford student said to a police constable, “Excuse me, do you realise your horse is gay?”. He was arrested and the police tried to fine him £80. A man growled and said, “Woof!” to two Labrador dogs and he was detained by the police and fined by magistrates. A 16 year-old boy held a placard saying, “Scientology is not a religion, it is a dangerous cult”, and he was arrested. An elderly street preacher displayed a sign that said, “Stop immorality. Stop homosexuality. Stop lesbianism. Jesus is Lord”. He was arrested, convicted and wound up being £600 out of pocket. All those stem from the inclusion of the word “insulting” in Section 5 of the Public Order Act 1986.
Is this a quirk of those of us who actually believe that Jesus is Lord, or does the opposition here have a somewhat broader base? I say particularly to the noble Baroness, Lady Smith, that this is not a party-political issue. Concern about this stretches across the Benches in both Houses, and the fact that I quote one Conservative MP does not mean that I am trying to make it party political; I just think that David Davis MP summed up the issue better than most speeches I have heard from Labour, Conservative and Lib Dem MPs. He said:
“Section 5, amongst other things, makes it illegal to insult somebody. This … law makes other things illegal which should be: incitement to violence is illegal; abusive behaviour is illegal. But an insult? Who should decide who’s insulted? … What this does is actually make the courts, the police, sit in judgment on whether somebody feels insulted or not, which actually has a terrible chilling effect on democracy”.
Baroness Hamwee
My Lords, it sounds as though in 1986 mere insults would have been quite a relief. I congratulate the noble Lord on the amendment, to which I put my name along with my noble friend Lord Macdonald of River Glaven, who, in a professional as well as a political capacity, has been quoted. I said at Second Reading that I hoped that the Bill might be a vehicle for this move, but I had little optimism that the Public Bill Office would accept the amendment as being within the scope of the Bill. So my congratulations to the noble Lord are doubled on that score.
I can spot when the House is ready to draw its business to a close and I have no doubt that we will have an opportunity to come to this at Report. When he left earlier today, my noble friend Lord Lester muttered to me that he would speak on it at Report. I leave it to your Lordships to decide whether that is a threat or a promise. The House has already heard that taking the word “insulting” out of Section 5 is Liberal Democrat party policy because, in summary, insults should not be criminalised and because of the essential nature of free speech. Our policy would, indeed, go further and take the word out of Section 4A as well. I, and my colleagues on the Liberal Democrat Benches, very much support the amendment.
Lord Dear
My Lords, I will take up very little time in your Lordships’ House this evening. The noble Lord, Lord Mawhinney, has made a very powerful case, citing a lot of examples of the way in which this word has been abused within the purview of the Public Order Act 1986. We should, in fact, note that the words have been around since they first went on to the statute book in the Public Order Act 1936. However, it is only in the last 10 or 12 years that the word “insulting” has attracted this sort of attention. As many of your Lordships know, I have taken a close interest in this for a very long time. I have spoken on at least half a dozen occasions in your Lordships’ House; I have tabled numerous Questions for Written Answer and written articles in national newspapers, including one in the Daily Mail online today, always pressing for the removal of this word from the Public Order Act. Over the last two or three years that I have been engaged in this campaign, I have watched public opinion switch from either indifference or opposition through to almost complete unanimity in the public domain. One might almost say that the door is swinging wide open—something that the noble Lord, Lord Mawhinney, has noticed for himself.
I will quickly cite two examples. I spoke on exactly this point at Second Reading during the passage of the Protection of Freedoms Act last November, and again on the fourth day of the debate on the Queen’s Speech on 15 May this year, and reflected that—but for the three-month consultation period which had produced something of a logjam in the process—I would be tabling the amendment myself. On 15 May, the noble Lord, Lord Henley, from the government Front Bench said in reply:
“As for the noble Lord's particular remarks about Section 5 of the Public Order Act, I ask again that he be patient for a little longer. It is a complex issue, and we have to give careful consideration to the views expressed in the 2,500 responses that we have had to the consultation”.—[Official Report, 15/5/12; col. 376]
As has been said, we are still waiting and patience is perhaps being stretched a little but I, for one, am prepared to wait, particularly since we have the prospect of the summer recess in which the Home Office can come to a conclusion on this. I am a little surprised that the noble Lord, Lord Mawhinney, has tabled the amendment now, because it presses exactly the same point that has been pressed before and we are still waiting for the opportunity to get the consultation out of the way and then have a clear run at the issue.
My response is fairly self-evident. I will continue to advocate the removal of “insulting” from the Public Order Act and, to that end, I shall exert all the pressure I can in due course. This is not an amendment that I would have tabled today and I hope that it will be withdrawn at this stage. It would be helpful if the Minister could again signal an urgency in the Home Office to deal with the consultation so that we can properly address the issue at Report.
Lord Rosser
My Lords, as has been said, the amendment removes the word “insulting” from Section 5 of the Public Order Act 1986. The noble Lord, Lord Mawhinney, has explained the reasoning behind the amendment. We will need to be satisfied as to its justification, the evidence advanced as to why it is needed and the extent to which that evidence reveals a problem that can only really be addressed by a change to the legislation. We will also want to be satisfied that removing “insulting” will not mean that people using such words or behaviour cannot be prosecuted when there is every justification and reason for doing so.
The consultation on this issue closed in January. The Government have not, as far as I am aware, published the replies to that consultation or their own response. Despite this, the Deputy Prime Minister, presumably in his official capacity, has apparently made comments supportive of the approach in the amendment. Bearing that in mind, and the distinguished noble Lords whose names adorn the amendment, I suspect that the Government, at worst, are not going to reject its intentions.
For our part, we will listen to whatever points the Minister has to make, as well as the points made by noble Lords in the debate, to which we will want to pay regard. We also want to consider the replies to the consultation when they are published, along with the Government’s response, before coming to a firm conclusion.
Lord Henley
My Lords, I hope that I can be relatively brief in responding to the speech of my noble friend in moving the amendment, and the remarks that other noble Lords have made. My noble friend need not apologise for the fact that he was a member of the Government and was a signatory to the Public Order Act 1986, which included the word “insulting”. As the noble Lord, Lord Dear, has reminded us, “insulting” goes back to the Public Order Act 1936, introduced by the then National Liberal Home Secretary, Sir John Simon. That was very much borne out of the fascist marches of the 1930s. Section 5 of that Act referred to any,
“person who, in a public place or at a public meeting, uses threatening, abusive or insulting words”.
That is much the same as the 1986 Act which my noble friend now feels embarrassed about having signed up to.
To take the history lessons back a bit further, I take my noble friend back to the Metropolitan Act of 1839. That was under a Whig Government—the forebears of the Liberal Democrats—who, again, introduced the word “insulting”, but which applied only in London and not in other parts of the country. I make this point to say that this has been going on for some time.
Similarly, I apologise to my noble friend for the fact that our consultation ended in January and we have not responded within the appropriate three months; however, it did cover a number of other issues. Obviously, it is now six months since that consultation ended. As has been made clear by a number of noble Lords who spoke, we had some 2,500 responses to that consultation and we want to consider them carefully. It is clear that there are a number of different and passionately held views on the subject. Given the complexity of the issues raised, we in the Home Office, as Ministers and officials, are still considering the balance of all those representations. So, I say to the Committee—and to the noble Lord, Lord Rosser—that I am not in a position today to set out the Government’s position on the amendment.
This is a timely debate, which will help to inform the Government’s further deliberations. I would have been grateful if it could have happened at a time when more noble Lords were here in Committee. Although I appreciate that the names on the amendment of those who support it come from different parts of the House and they all seemed to be on the same side, there are strong believers in other views. We have heard a number of cases indicating the weakness of having “insulting” in the provision. Different noble Lords have cited a number of different cases.
We also have to accept that freedom of expression is never an absolute right. It needs to be balanced with other competing rights. It was made quite clear in the case of Percy and the DPP that Section 5 is proportionate and contains that necessary balance between the right of freedom of expression and the right of others to go about their business without being harassed, alarmed or distressed.
I do not want to go into details at this stage because we are debating this at too late an hour with too empty a Chamber. All that I am saying is that we have had a consultation. That has ended and we have had 2,500 responses. Those need to be considered carefully and all of us need in time to take a view. I hope that all noble Lords will accept that there are arguments on both sides, as the noble Lord, Lord Rosser, put it. Those need to be considered very carefully. I am pretty sure that I can say to my noble friend Lord Mawhinney that we are likely to come back to this issue at a later stage in the Bill.
As I have said on other occasions, we have some considerable time before we get to Report. That might make it easier to come to that considered view. I hope at that point we will be able to put forward the Government’s considered view to the House. Therefore, I hope that my noble friend will, on this occasion, feel able to withdraw his amendment.
Lord Mawhinney
My Lords, I am grateful to the Minister for his response and to other colleagues who have spoken. None of us who spoke is responsible for the fact that the debate is on very late and the House has well below the number of noble Lords who might normally have considered the matter. That is not our fault. I hear what the Minister said about the lateness of the hour tonight. If we come back to this at Report, I am not sure that that argument will carry much water were it to be tried a second time around.
The Minister will have heard that those who have spoken have all spoken with one voice. I would like to pick up the point that the noble Lord, Lord Dear, made about the timing of this. Having been privileged to spend 26 years at the other end of this Corridor and a mere seven at this end, I understand why Governments and Parliament issue guidance. They issue guidance to constrain the power of the Executive to put stuff in the long grass and let it lie there. Guidance is designed to say to Ministers, “You can have reasonable time, but there comes a point when Parliament must be accorded the rights and privileges that go with the name Parliament”.
My noble friend pointed out that there were 2,500 replies, and six months later they are still studying them. Okay, but the guidance was that they should have replied in three months, so at the very least we should have had a message from the Executive two months ago saying, “This is really taking us longer than we thought. We hope Parliament won’t mind if we take a little longer”. Do you know what? I am guessing that Parliament would have said, “Okay, take a little longer”, but here we are after six months. I say to my noble friend, “Take a little longer”. However, I also say that the mood of the House and the mood of the other place would be that, well before Report stage, we would wish to be encouraged to believe that not only had the Government formed a view, which they were willing to share, but that they had done something politically quite sensible and aligned themselves with the vast majority of people who want to see “insulting” removed from Section 5.
As my noble friend goes away to sit at his desk over the summer pondering things, I offer him a reflection from former US President Harry Truman, who had only two frames on his desk. One frame held a picture of his wife, and in the other was a saying from Mark Twain. Every day, Harry Truman read these words:
“Always do right. This will gratify some people and astonish the rest”.
I offer that encouraging thought to the Minister as he contemplates those 2,500 responses and the content of this short debate. I beg leave to withdraw the amendment.