Arrangement of Business
The Deputy Chairman of Committees (Lord Skelmersdale) (Con)
My Lords, the Grand Committee is now in session. If there is a Division in the House, the Committee will adjourn for 10 minutes.
Co-operative and Community Benefit Societies and Credit Unions (Investigations) Regulations 2014
(10 years, 8 months ago)
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Lord Newby
That the Grand Committee do consider the Co-operative and Community Benefit Societies and Credit Unions (Investigations) Regulations 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
Lord Newby (LD)
My Lords, I am pleased to introduce the Co-operative and Community Benefit Societies and Credit Unions (Investigations) Regulations 2014. With your permission, I will refer to them as the investigations regulations.
The current regulatory regime for co-operatives, community benefit societies and credit unions is in need of modernisation in order to deliver better outcomes for consumers and the sector in Great Britain, now and for the years to come. The Government are therefore taking forward a package of measures, following a public consultation last year. The investigations regulations are part of this package.
The other three measures in the package will increase the amount of withdrawable share capital an individual can invest in a society from £20,000 to £100,000; make insolvency rescue procedures available to industrial and provident societies; and simplify electronic registration for new societies.
These changes, alongside progressing the co-operative and community benefit societies consolidation Bill, demonstrate the Government’s commitment to promote mutual bodies and to foster diversity in the UK economy while preserving the unique features of the sector. There are around 7,600 societies and 380 credit unions registered in Great Britain. The sector continues to provide a popular and successful structure for mutually run businesses, with a growing membership of more than 15 million members in the UK.
Looking specifically at the investigations regulations, this statutory instrument gives the Financial Conduct Authority additional powers to investigate co-operatives, community benefit societies and credit unions where circumstances suggest their behaviour may be improper or unlawful. The FCA initially requested these changes to legislation to enhance its powers to investigate societies. The proposal was included in the Government’s July 2013 public consultation, Industrial and Provident Societies: Growth through Co-operation, and was well received by respondents from industrial trade bodies, individual societies, credit unions and consumer groups.
The investigations regulations aim to increase confidence in co-operatives, community benefit societies and credit unions by creating a level playing field with the requirements that companies face. Therefore, the additional powers for the FCA are in line with the current powers in the Companies Act 1985, appropriately modified for societies. The investigations regulations include a number of new powers, including the requirement for the FCA to appoint an inspector if a court instructs it to do so. They also give the FCA power to appoint an inspector to investigate the affairs of a society. The power is available in the same circumstances as for companies, for example where it appears to the FCA that the society’s business may have been conducted with an intention to defraud creditors or for unlawful purposes.
Other powers concern the expenses of an investigation and state that these would be payable in the first instance by the FCA, which would then have the power to recover them from the society investigated. The total cost of an investigation is expected to be no more than £100,000, since co-operatives, community benefit societies and credit unions are relatively simple business models compared with large companies, where much higher costs may be involved.
In practice, the FCA’s first intention would be to recover the costs of an investigation from the periodic fees paid by all societies; as a last resort the FCA may consider using its central budget before passing on any costs to a society. It is also worth noting that the FCA estimates, based on past experience, that it would only need to use the powers to investigate up to one society a year.
The measure also gives the FCA, or an authorised investigator, power to give directions to a society to produce documents and provide information. This is similar to the FCA’s existing powers but, in addition, the investigations regulations give the FCA or an authorised person the power to apply to a magistrate for a warrant of entry to premises of a society on the same grounds as those relating to companies.
These regulations will help to improve the legislation for co-operatives, community benefit societies and credit unions by bringing it more into line with that for companies and giving members of these societies confidence that the regulator has adequate powers to act to investigate those societies suspected of wrongdoing. This will benefit the co-operatives sector as a whole by giving more confidence in the legal form, and it has been welcomed by the main trade body, Co-operatives UK. I commend the regulations to the Committee.
Lord Tunnicliffe (Lab)
My Lords, these regulations seem to be universally welcomed and they are certainly welcomed from these Benches. I studied the Explanatory Memorandum with some care and looked at the general Committee debate in another place. The only point that my eyes alighted upon was the powers mentioned in paragraph 7.4 of the Explanatory Memorandum. The other powers concern the expenses of the investigation. These will be payable in the first instance by the FCA but will be recovered from the society being investigated, which rather implies that they go through the FCA as a transaction. I note the response that the Financial Secretary to the Treasury made in another place, using more or less the same words that the Minister has used—that it would be unusual for such a charge to be passed through to the society being investigated. However, I would welcome an assurance that where the investigation reveals no malpractice, there will certainly be no passing through of the charge to the society concerned. With that, I am entirely content with the regulations and fully support them.
Lord Newby
My Lords, in respect of the noble Lord’s question, the FCA has the option of either recouping its costs directly from the society in question or funding the costs from within its own overall budget. In the case of a society being felt to have committed no wrongdoing, the FCA may well decide that it is more appropriate to adopt the latter option. However, the decision will be for the FCA. I hope that that answers the noble Lord’s question.
Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2014
(10 years, 8 months ago)
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Lord Newby
That the Grand Committee do consider the Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
Lord Newby (LD)
My Lords, I am pleased to introduce to the Committee the Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2014 and the Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2014. As both the regulations and the order deal with national insurance contributions, it seems sensible that they should be debated together. As a matter of course, I can confirm that the provisions in the regulations and the order are compatible with the European Convention on Human Rights.
The changes to the NICs rates and thresholds covered by these two instruments were announced as part of the Chancellor’s Autumn Statement on 5 December last year. It is worth confirming from the start that the basis of indexation that has been used to calculate the changes covered by these two instruments is the same as that used since the 2012-13 tax year.
In the Budget 2011, we announced that from the 2012-13 tax year the basis for indexation of most NICs rates limits and thresholds would be the consumer prices index, the CPI, instead of the retail prices index, RPI, rate of inflation. This is because the Government believe that the CPI is the most appropriate measure of the general level of prices. The exceptions to this are the secondary threshold and the upper earnings and upper profits limits.
I will start with the Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations. These regulations are necessary to set the class 1 national insurance contributions lower earnings limit, primary and secondary thresholds and the upper earnings limit for the 2014-15 tax year. The class 1 lower earnings limit will be increased from £109 to £111 per week from 6 April 2014. The lower earnings limit is the level of earnings at which contributory benefit entitlement is secured. However, NICs do not need to be paid by the employee until earnings reach the primary threshold. The class 1 primary threshold will be increased from £149 per week to £153 per week from 6 April 2014. The secondary threshold is the point at which employers start to pay class 1 NICs. In line with the commitment in Budget 2011, this is being increased by RPI from £148 to £153 per week.
From this April, the income tax personal allowance for people born after 5 April 1948 will be increased above indexation by £560 from £9,440 to £10,000. The point at which higher rate tax is payable will be increased to £41,865 in the 2014-15 tax year. As I mentioned, the upper earnings limit is not subject to CPI indexation. This is to maintain the existing alignment of the upper earnings limit with the point at which higher rate tax is paid. The upper earnings limit will be increased from £797 to £805 per week from 6 April 2014. The regulations also set the prescribed equivalents of the primary and secondary thresholds for employees paid monthly or annually. There will be no changes to NIC rates in 2014-15. Employees will continue to pay 12% on earnings between the primary threshold and the upper earnings limit, and 2% on earnings above that. Employers will continue to pay contributions at 13.8% on all earnings above the secondary threshold.
I move on to the social security order. This order sets out the NICs rates and thresholds for the self-employed and those paying voluntary contributions as well as providing for a Treasury grant. The order raises the small earnings exception below which the self-employed may claim exemption from paying class 2 contributions. The exception will rise in April, from £5,725 to £5,885 a year. Many self-employed people choose to pay these contributions in order to protect their benefit entitlement even though they may claim exemption from paying class 2 contributions. The rate of class 2 contributions for the 2014-15 tax year will rise from £2.70 to £2.75 a week. The rate of voluntary class 3 contributions will also increase from £13.55 to £13.90 a week for the 2014-15 tax year.
Today’s order also sets the profit limits for class 4 contributions. The annual lower profits limit on which these contributions are due will increase from £7,755 to £7,956 in line with the increase to the class 1 primary threshold. At the other end of the scale, the annual upper profits limit will increase from £41,450 to £41,865 for the 2014-15 tax year. This is to maintain the alignment of the upper profits limit with the upper earnings limit for employees. The changes to the class 4 limits will ensure that the self-employed pay contributions at the main rate of 9% on a similar range of earnings as employees paying class 1 contributions at the main rate of 12%. Profits above the upper profits limit are subject to the additional rate of 2% in line with the 2% paid by employees on earnings above the upper earnings limit.
Finally, I need to ensure that the National Insurance Fund can maintain a prudent working balance throughout the coming year, which the Government Actuary recommends should be one-sixth or two months of benefit expenditure. The rerating order provides for a Treasury grant of 5% of benefit expenditure to be made available to the fund in the 2014-15 tax year. Similar provision will be made in respect of the Northern Ireland National Insurance Fund. I commend the regulations and order to the Committee.
Lord Tunnicliffe (Lab)
My Lords, I have studied the Explanatory Memorandum and these regulations with great care, and I have to confess that I am finding it very difficult to find any questions whatever to ask on them. The report of the general committee in the other place was equally bereft of any serious exchange. There were some technical questions asked but I will not repeat them, on the basis that I am sure that the Treasury machine would give precisely the same answers. There was an exchange on some thinking that we are developing about a different rate of benefit for people who have paid contributions over a number of years but that has to be developed further, to make sure that it is cost-neutral. The 5% that the Minister mentioned is, as I understand it, essentially a piece of book-keeping and does not represent any increase in overall public expenditure. I am not sure whether the Minister said that explicitly and I would value it if he were to confirm that but otherwise we have no comments to make on these regulations.
Lord Newby
My Lords, I can confirm that the provision of a 5% Treasury grant is indeed a piece of book-keeping and does not involve any additional expenditure.
Lord Tunnicliffe
My Lords, before we start the next business, due to the efficiency with which we have executed our previous business, we are rather scratching to find a spokesman. I wonder whether we might take a 10-minute break for the Opposition to find a spokesman for the next round.
The Deputy Chairman of Committees
My Lords, yes, in due course but the noble Lord, Lord Tunnicliffe, is being a little previous.
Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2014
(10 years, 8 months ago)
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Lord Newby
That the Grand Committee do consider the Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
The Deputy Chairman of Committees (Lord Skelmersdale) (Con)
My Lords, I think by general agreement the Grand Committee will adjourn for 10 minutes.
Warm Home Discount (Amendment) Regulations 2014
Lord Gardiner of Kimble
That the Grand Committee do consider the Warm Home Discount (Amendment) Regulations 2014.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments.
Lord Gardiner of Kimble (Con)
My Lords, in introducing this debate on the Warm Home Discount (Amendment) Regulations 2014, I will first give some background to the scheme to provide context to this amendment.
The coalition is committed to tackling the problem of fuel poverty and to helping people, especially in low-income vulnerable households, heat their homes. Fuel poverty remains a huge challenge. Despite significant investment in improving our housing stock, some housing remains inefficient. Combined with rising energy prices, that means that there are still too many households left in fuel poverty. The warm home discount scheme is part of the Government’s programme to address the contributing factors of fuel poverty, either through increasing income or reducing the costs of energy.
Introduced in 2011, the key aspect of the warm home discount is that it requires electricity suppliers with more than 250,000 domestic customer accounts to provide financial support with energy costs to their vulnerable customers. Spending is incurred by participating suppliers in respect of two groups of customers: first, the poorest pensioners, who are customers of participating energy suppliers—described in regulations as the “core group”—and secondly, other low-income and vulnerable customers. This second group comes under what is described as “non-core spending”.
Under the core group, all the poorest pensioners eligible for the scheme receive a rebate in respect of their electricity cost from their supplier. This winter, that rebate was £135. Other groups, such as low-income families and those with long-term illnesses and disabilities, can apply for rebates to their supplier. Those rebates are counted as part of non-core spending and are also worth £135 this winter.
Since the warm home discount scheme was introduced, around 2 million households each year have had lower energy bills as a result. Due to the success of the warm home discount, the Government have committed to extend support to 2016, with spending of £320 million in addition to the £1.1 billion which will be spent over the first four years of the scheme.
This amendment aims to give energy suppliers the incentive to spend £34 million more than they are required to spend this scheme year. As a result, more than 250,000 more low-income and vulnerable households could benefit from a £135 rebate this scheme year. That would also maintain an upward trajectory of spending each scheme year.
There is an overall spending target for each year of the warm homes discount which sets out the value of assistance that participating suppliers should collectively provide. For 2013-14, the spending target set out in regulations is £300 million. That total spending is divided into the demand-led core group and the non-core spending. Having estimated the size of the core group, the Government set the total non-core spending obligation for suppliers for the forthcoming scheme year. The larger the core group, the smaller the amount of non-core spending suppliers have for other groups of households who may qualify for a rebate. The size of the core group has to be estimated in advance of the start of each scheme year to inform suppliers and give them sufficient time to prepare for their spending obligations.
When the department set the non-core spending obligation in advance of the 2013-14 scheme year, it estimated that the core group would result in spending of £200 million. Given a total spending target of £300 million, the department set the total non-core spending obligation at £100 million. However, six months on from setting the non-core spending obligation, the size of the core group was lower than forecast. Therefore, we now estimate that suppliers will spend £166 million on their core group customers in 2013-14.
That means that £34 million of the overall spending target that suppliers could use to help other vulnerable households would not be required to be spent in 2013-14. Under the current regulations, if suppliers spend more than required, their individual obligations for the next scheme year are reduced by a maximum of 1% of the current scheme year’s non-core spending obligation, even if they overspend on more than 1%.
The amendment would change that maximum limit to 34%, providing an incentive for suppliers to spend above their obligations by up to that amount. For example, if an individual supplier spends 25% above its individual non-core spending obligation in 2013-14, Ofgem will reduce its obligation in 2014-15 by the same amount.
However, spending by suppliers will still be higher next winter than this winter. The amendment is intended to close the gap in spending between years so that we maintain the growth in the number of households who receive electricity bill rebates year on year. As required in the regulations, the Secretary of State has already notified Ofgem of the non-core spending obligation for 2014-15. The Secretary of State has set the obligation based on spending of £266 million in 2013-14, and has added the £34 million underspend against the total spending target this scheme year to the spending target for 2014-15. This takes us to a total of £344 million.
However, if suppliers incur more non-core spending than they are required to prior to the end of March, Ofgem will be able to adjust down individual non-core spending obligations by 30 September once suppliers report their actual spending for this scheme year. This change has been consulted on and all respondents were supportive of the change. Although suppliers have not given us exact forecasts of how many more rebates they intend to provide, some suppliers have already decided to spend above their regulatory obligations in anticipation of this change. This amendment means that more low-income and vulnerable households may receive £135 off their bills this winter than would have been the case otherwise. It will give suppliers the incentive to provide more rebates to a greater number of households this year and therefore provide more help to tackle fuel poverty. For those reasons, I commend these regulations to the Committee.
Baroness Maddock (LD)
My Lords, my noble friend the Minister will know that fuel poverty is one of the areas in which I take a particular interest. During the passage of the last Energy Bill, due to pressure on the Government from myself and many others, we were pleased to have a fuel poverty strategy from the Government in that Bill. Therefore, I particularly welcome the changes here, which mean that more vulnerable and low-income households will be taken out of fuel poverty.
As we have listened to my noble friend, it is obvious that the regulations surrounding all this are incredibly complicated. Have the Government any plans to try to simplify this as they move forward with their fuel poverty strategy? I was going to ask how many people will be taken out of fuel poverty, but I think that he answered that in his opening comments.
It is particularly important that we look at the cost of fuel because, although a lot has been said in the press about people who are choosing between food and fuel and about people attending food banks, the real increase for people on low incomes has been in the price of fuel. The increase in fuel prices is much higher than for the price of food, particularly for people on low incomes who are on some form of benefit, because they are often unable to access the cheapest rates for fuel. They have a key card and pay more than many people who can afford more. So I welcome this provision, but I would like to know how it fits in as we go forward with the fuel poverty strategy.
Lord McKenzie of Luton (Lab)
My Lords, I am grateful to the Minister for his clear exposition of his amendment. Like him, we see it as an issue subject to significant challenge. As the noble Baroness, Lady Maddock, has just said, it is the poorest who sometimes pay comparatively more for their fuel; those who of us who are better off can do it with direct debits and take advantage of various schemes on offer.
I have a couple of questions. I understand the thrust of what the Minister was saying. I am sure that my noble friend Lord Grantchester will chip in and support me on this, as I think that he has done the background work. I am a little unclear as to why the numbers in the core group are falling short of what was originally anticipated. My understanding is that the access to that group is determined by pension credit—either the guaranteed credit or the savings credit. I think that there is an age threshold of 75 and above for either savings credit or the guaranteed credit; for those below that age, it is just the guaranteed credit. Part of my question is, if it is because fewer people have been able to access pension credit—we know that pension credit is one of the benefits with the lowest level of take-up—what are the Government doing to address that?
Specifically, in relation to the core group, the non-core group and the criteria going forward, the Government are introducing a Pensions Bill at the moment with the single-tier pension. One consequence of that Bill is that, from April 2016, pension credit or savings credit is being abolished. Therefore, people who retire on or after that date will not be entitled to the savings credit. Fewer will be entitled to the guarantee credit because the idea of the single state pension effectively is to have a pension which is at the current guaranteed pension credit level or slightly above it. The income of people will not be substantially different but they may be swapping state pension for what was a guarantee credit top-up.
Therefore, there are two categories of people; namely, those currently entitled to savings credit, which will disappear in April 2016, and those currently entitled to guarantee credit who will end up with broadly equivalent income but will get it via the single-tier pension and not via the guarantee credit. If those two avenues, which I understand are the access to the core group, are no longer available, what discussions have taken place? What focus has there been on any alternative route and access to the warm home discount scheme? I am sure that the Government have turned their mind to that issue, which seems to me to be vital. I would be interested to hear from the Minister quite what is proposed.
I am not quite sure that I grasped what the Minister said. I certainly will read the record. I am sure that my noble friend Lord Grantchester will ask how the carryover will work. If the net effect is for an extra £34 million to be available in support of this scheme, clearly we would support that. I am not quite sure how the cut-off points work and whether the discounts are dealt with on a financial-year basis; that is, they run until 31 March, notwithstanding the fact that someone’s account might span that date and, in a sense, run over any period. Doubtless the Minister will be able to enlighten us. Those are my questions but my noble friend may well wish to supplement them. I thank the Minister for his exposition of these proposals.
Lord Grantchester (Lab)
I apologise to the Committee for being caught out in my public transport arrangements this afternoon and I am very grateful to my noble friend Lord McKenzie for stepping in at the last minute. He is right that the core group has been reduced and in asking his questions. In terms of the year being averaged with the following year, as I understand it, the shortfall in any one year and the expenditure can be carried over into the non-core group. The Minister is nodding his head in confirmation. Obviously my noble friend has asked the pertinent question of what is being done to make sure that the right people are targeted and helped in order to receive the money that they so desperately need to alleviate fuel poverty.
Lord Gardiner of Kimble
My Lords, I thank your Lordships for their comments. I had personal sympathy with my noble friend Lady Maddock when she spoke about simplification. I had to read some of this brief rather more than once or twice and the point is very much taken on board. This spring, we will be consulting on the future of the scheme, part of which is to see whether we can simplify it in a way that is perhaps more readily understandable and user-friendly.
The whole basis of this part of what we are seeking to do is to ensure that the most vulnerable in our society are protected as well as possible, given rising prices and, as I have explained, homes that are not as efficient as we would like. I know that my noble friend Lady Maddock has been a fierce champion of fuel poverty issues, and rightly so. As I said, that is part of what we are seeking to do. Certainly, the whole way in which this amendment is designed and why it is important is because it provides another £34 million for that non-core spending that will help families, which is so important.
Lord McKenzie of Luton
Can the Minister help me out on that point? He differentiated between forecasts for pension credit as a whole and forecasts of those components of pension credit which drive accessibility to the warm home discount scheme. What is different about that second category compared to those who are otherwise generally entitled to access pension credit?
Lord Gardiner of Kimble
I may have to write to the noble Lord because this is getting intricate. However, we are intending to consult this spring on the changes to pension credit impacts. This will include impacts to the changes to the benefits system vis-à-vis, as the noble Lord mentioned, pension credit and universal credit. Therefore, the best thing I can do is to make sure that I get this absolutely right for the noble Lord. Rather like these regulations, some of it is quite intricate, and I would like to give the noble Lord a full answer to that particular point if that would be helpful.
Lord McKenzie of Luton
That would be very helpful, and I am grateful to the Minister. I will revert to this issue about the changes which the Government are proposing to the state pension. Part of that is that the savings credit will simply not be available in the future—it will disappear as a benefit. Therefore what discussions have taken place and what planning is under way to make sure of the position of people who currently access the warm home discount scheme because they are in receipt of that benefit? What will be their position and access in the future? That is a pretty important policy issue. We have tried to get some clarity via the Pensions Bill; it would be good to get some clarity somewhere on this.
Lord Gardiner of Kimble
Given the points the noble Lord has made, the best thing would be for me to include that issue in a letter. That would be more fulfilling as regards getting the answer he is looking for.
Lord McKenzie of Luton
It would be particularly helpful to have that explanation by the time we get to Third Reading of the Pensions Bill, as it is one of the few residual issues on that piece of legislation.
Lord Gardiner of Kimble
I shall ensure that the noble Lord gets a letter.
In conclusion, the noble Lord, Lord Grantchester, was right to say that the basis of this is to get the right groups targeted. This is part of the way in which the Government wish to address fuel poverty. It is right that the net effect is to ensure that another £34 million goes in to help families. I agree that we should look at how we simplify these matters, but under the regulations we are dealing with we need to have this amendment.
Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2014
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston)
My Lords, these regulations will help to maintain the smooth operation of the business rates retention scheme in England. The scheme allows local authorities to retain up to 50% of business rates income in their area, which provides a direct incentive and a boost to those authorities that go for growth. This incentive could deliver a £10 billion boost to the economy by 2020.
The scheme was first introduced last April and since then we have continued to hold discussions with local government on how it operates in practice. These regulations make some technical changes to the rules for calculating the levy and safety net under the business rates retention scheme, which we have identified as a result of those discussions. All of the changes we are making today have been agreed with representatives of local government.
The rates retention scheme includes a safety net system to protect those authorities which, for whatever reason, see a large drop in their business rates income. The safety net ensures that no authority’s income from the rates retention scheme can drop by more than 7.5% below their baseline funding level. Authorities in that situation receive a safety net payment which increases their income to the 7.5% threshold.
Equally, there are some authorities which, because they have such a large amount of business rates income in comparison to their spending, are potentially able to generate significant sums in business rates growth. These sums may be very large when compared to the authorities’ spending requirements. Therefore, the system includes a levy on those authorities which can generate growth which is disproportionate to their spending. The income from the levy is used to fund the safety net.
These regulations make some technical changes to that levy and safety net system. First, the regulations, together with the original regulations which they amend, ensure that changes to business rate reliefs introduced by central government are not captured within the calculation of the levy or safety net. So, for example, in the Autumn Statement of last year the Government announced that small business rate relief will continue to be doubled until 31 March 2015, a change that was welcomed. This rate relief for business reduces the rates income for local government. These regulations ensure that the reduction in income from this change, and other changes introduced by the Government, are not included in the calculation of the levy and safety net.
We have done this because we will separately compensate local government for the lost rates income from central government changes to business rate reliefs. We will do this outside the rate retention scheme using a grant under Section 31 of the Local Government Act 2003. Indeed, the Section 31 payments for 2013-14 have already been made, and the payments for 2014-15 will commence in April.
If we did not make the amendments in these regulations, local authorities might also receive compensation for the Autumn Statement measures through a reduced levy or a safety net payment. For example, if an authority is already on the safety net then the Autumn Statement measures would merely increase their safety net payment, and this would duplicate the compensation they are already receiving through the Section 31 grant.
So these amendments ensure that authorities will receive the correct amount of compensation for changes to business rate reliefs introduced by the Government. The amendments and the method for calculating the Section 31 grants delivering the compensation have all been agreed with local government.
The regulations also make a number of technical improvements to the original scheme. They will ensure that when an authority which is paying a levy or receiving a safety net also chooses to reduce rate bills using a local discount scheme, it will have to meet only the local share of the cost of those discounts. The original regulations required it to meet the full cost of the local discounts, which was rightly criticised by local government, so I am pleased to be able to correct it now. We are also taking the opportunity to correct an error concerning the treatment of relief in an enterprise zone and we have also included amendments to future-proof, to use the common phrase, business rate retention pools so that we do not need to return to the House with further regulations every time those pools change.
I hope that I have been able to explain the measures clearly. They are designed to ensure as far as possible simplicity of the operation of the scheme. I commend the regulations to the Grand Committee.
Lord McKenzie of Luton (Lab)
My Lords, I thank the noble Baroness, Lady Stowell, for a very clear explanation of the regulations. As will be clear from our contributions in another place, we will certainly not be opposing them.
I shall come in a moment to the matter of helping to maintain the smooth operation of the current system and explore how the general progress of the new system is proceeding, but first I have one or two specific questions. On the adjustments being made to small business rate relief, is it just the extra small business rate relief for 2013-14 and 2014-15 which is being adjusted for or the totality of it? I have not worked through the formula, but I would be grateful for an answer. As for the Section 31 grant which is keeping local authorities whole, is that an exact compensation for each authority for the adjustment being made under the proposals?
The noble Baroness referred to discretionary rate relief; some of it has been amended under the provisions, but not all of it. Paragraph 7.7 of the Explanatory Note states:
“The 2013 regulations ensure that certain discretionary discounts (relating to not for profit organisations, community sports and social clubs, rural properties and property in enterprise zones) and hardship relief will be included for the purpose of calculating retained rates income, but that other discretionary relief will be ignored”.
Can the noble Baroness give a few examples of what is likely to be in that other discretionary relief which will be ignored?
I am trying to get a handle on what is happening to the safety net and the levy. For the two years in question, could we have an update on the amounts of the safety net now expected to be payable in comparison to the original estimate? Do we know how much of that safety net expenditure is attributable to appeals rather than to other changes in the capacity of the business rate base in any particular council? In respect of that safety net, how much is actually being paid for by the levy and how much is being top-sliced from the RSG? It is important to understand who is actually bearing the cost.
I conclude on the noble Baroness’s assertion that these regulations are helping to maintain the smooth operation of the new system. It is clear from looking at what is happening to local authority support, using the Government's own preferred measure of the spending power of the household, that the 10 most deprived authorities in England will lose 10 times the amount in spending power per household compared to the 10 least deprived local authorities between 2010-11 and 2015-16. If you look at the cumulative cut in spending power per household over that period of 2010-11 through to 2015-16, some of which I accept precedes the business rate retention scheme, for the 10 most deprived authorities there is a reduction of 25.3%, while for the 25 most deprived it is 22.5% and for the 50 most deprived it is 20.96%. However, for the 10 least deprived it is 2.54%. Can the Minister explain how these outcomes are justified? Is it an intent of policy that this be the outcome or some quirk that was not intended to happen? We have seen enough of the system now to be able to ask legitimately whether the Government really intend this redistribution. Perhaps we could understand where it is articulated because if we extrapolate forward what has happened over the past couple of years the situation for local authorities, particularly those most deprived and challenging authorities, is very dire indeed.
Baroness Stowell of Beeston
I am certainly grateful to the noble Lord for confirming that the Opposition do not oppose these regulations. As noble Lords will be aware, when this Government came into power we made some changes to business rates. One of our various changes was having measures to reduce the burden of business rates on business; the others were to ensure that local authorities were able to enjoy the benefits of the business rates that they collected and to do so in a way that encouraged and supported growth, so that they would see the benefits and enjoy some of the proceeds of that growth. We believe that this system is working well.
The noble Lord, Lord McKenzie, asked me some specific questions to which I am happy to respond. First, he asked about the Section 31 grants, which are paid to compensate local authorities for the reliefs that were announced in the Autumn Statement. I can confirm that each local authority will be compensated for the relief that they actually give. He also asked about the small business relief and the share for local government. I have been given an answer but I am struggling as I read it to recall which point the noble Lord raised. However, I think that the plus symbol in the regulations is 50% of the full cost of the small business rate relief that is the local share. Does that answer the point that the noble Lord raised? I think that he was asking about the small business relief and the half for local government share. I may need to come back to that one and perhaps clarify it.
The noble Lord asked for an update on the safety net and how that is working. In the last financial year, we have paid £69 million in safety net payments. Those numbers may change when outturn figures are available at the end of the year but, at the moment, I cannot give him any further information. I should make it clear that while I said “the last financial year”, it is the current financial year in which we are paying £69 million in safety net payments. Clearly, as we are still in that financial year I am not able to give him the final data on that number.
To go back to the question that I was struggling to answer, I think that the symbol that the noble Lord was asking about is T. In Regulation 4, there is a calculation and, in that rather scientific-looking formula in the regulations, T is 50% of the amount of small business rate relief given to local ratepayers. In other words, it is the amount of relief given as a result of the Government’s decision to double small business rate relief in 2013-14 and 2014-15. I hope that that clarifies the noble Lord’s question.
We have set aside £120 million from revenue support grant to pay for the safety net in 2014-15. If it is not needed, we will return it to authorities. I think that the noble Lord asked me how much of the safety net was being paid for out of the revenue support grant beyond that collected via the levy from those authorities that operate a surplus, if I can describe it in that way.
The noble Lord also pointed to paragraph 7.7 of the Explanatory Memorandum and asked for examples of other discretionary relief that will be ignored, as described in that paragraph. I spoke about other Localism Act relief schemes. These are local authority-run schemes, such as that in Croydon town centre. These regulations ensure that local authorities pay only their local share of the cost of those schemes. To expand briefly on that, we are saying—as the noble Lord understands and as I mentioned—that we have given local authorities the power to introduce their own discounts and reliefs. However, we need to ensure that, in introducing those discounts and offering those reliefs, they have to meet only 50% of the costs and not the full costs. The deal is that central government will meet half those costs, so we are amending the regulations to ensure that what we intend is borne out in practice.
More generally, to give some statistics on how the scheme is operating, our latest estimates show that business rates income in the next financial year, 2014-15, will be £22.4 billion, of which half, £11.2 billion, will flow directly to local government under the rates retention scheme. Local government will also retain a further £112 million for enterprise zones, renewable projects and collection costs. Some 92% of authorities will have more money in 2014-15 than their baseline funding level. Therefore, in only its second year, the rates retention scheme is delivering benefits for authorities that go for growth.
As to the noble Lord’s point about spending power more generally and the way in which local authorities are funded, he will know, because we have debated this in the past, that this Government are very clear that the changes we have made to how local authorities are funded represent the difference between us and the previous Government in principle. We are ensuring that areas of the country that are not currently in a position to benefit as much from this new system of going for growth are properly supported and that the grants that they receive and the spending power that is set for those areas reflect the pressures on them in terms of demands on their local services and the time that it may take them to be in a strong position to go for growth. We think that the way in which we have changed how local authorities are funded is right. We also think that the principle of encouraging growth is right.
With regard to towns and high streets, we are also making sure that local businesses have the right environment to be able to expand and flourish. The changes that we make, whether they are to business rates or other measures, such as tackling parking charges or development regulations in towns, mean that where there is potential for growth, that growth takes place and local authorities are able to benefit from it. They, in turn, can pass on the benefits to their local taxpayers.
I hope that I have been able to respond to all the points raised and I commend the regulations to the Grand Committee.
Lord McKenzie of Luton
Before the Minister sits down, I am grateful for some very detailed responses there. On the safety net for 2014-15, I think that she gave us a figure for the top-sliced amount. Can we have a figure for what is expected to be raised from the levy? Reverting to the more general point, one can see an argument in favour of encouraging people to go for growth, but if we look at what has actually happened in people’s loss of spending power, do the Government believe that it is right that the most deprived authorities should lose much more in percentage terms than the least deprived authorities? Is that an outcome of government policy which the Minister is happy with and believes is right?
Baroness Stowell of Beeston
On the specific question of money expected to be raised by the levy, I shall have to follow up in writing. As to the more general point about spending power, the point that I was trying to make to the noble Lord is that this Government are ensuring that those areas of the country in greatest need are properly supported. Spend per household in those areas is higher than in those areas that are wealthier. We certainly want to ensure that our approach supports all areas of the country to grow and to receive the benefit from a stronger economy so that, in time, they are all operating at their full potential.
Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014
(10 years, 8 months ago)
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Lord Faulks
That the Grand Committee do consider the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I beg to move that the Committee do consider the draft Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014, the Justices’ Clerks and Assistants Rules 2014 and the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014.
As your Lordships may be aware, these statutory instruments are a significant part of a package of secondary legislation required to bring into being the new family court. Section 17 of the Crime and Courts Act 2013 provides for the creation of a single family court for England and Wales. This will replace the three separate tiers of court that deal with family proceedings. The High Court will still hear family proceedings, but the intention is that in practice it will hear only those matters reserved exclusively to the High Court.
The Committee will recall that the independent Family Justice Review recommended the setting up of a single family court as the current three-tier structure is complicated, inflexible and difficult for families and other court users to navigate. Parliament then passed a law creating such a single family court in the Crime and Courts Act 2013.
The new family court will be able to sit anywhere in England and Wales and all levels of magistrates and judges will be able to sit. This includes lay magistrates, district judges, circuit judges, High Court judges and above. This should enable more effective and efficient use of judicial resources and of court staff and buildings. These instruments will go a long way in ensuring that family proceedings, particularly those involving children, will be dealt with more efficiently, with delay being the exception.
When the new family court is implemented, the family proceedings courts will no longer exist and magistrates’ courts and the new single county court will not be able to hear family proceedings. However, as the family court can sit anywhere, it can sit in the county court or magistrates’ court buildings.
I turn to the destination of appeals order. The Matrimonial and Family Proceedings Act 1984 provides that if any party to proceedings in the family court is dissatisfied with the decision of the court, that party may appeal to the Court of Appeal. The Administration of Justice Act 1960 provides that if any party to proceedings in the family court is dissatisfied with a decision relating to contempt of court, that party may appeal to the Court of Appeal. The destination of appeals order aims to route appeals against the decisions of certain judges of the family court away from the Court of Appeal to the family court.
I will speak first about appeals against decisions in the family court, except those relating to contempt. The objective of this order is largely to enable replication of the current position whereby appeals from magistrates and of district judges do not go to the Court of Appeal. Rerouting appeals away from the Court of Appeal is not new. It is a well established principle that appeals should normally be heard at a lower level than the Court of Appeal. In the family court the intention is that they will be heard by a higher level of judge than the one who made the decision being appealed.
So the intention is that generally, for the single family court, the same judges will be hearing appeals as now, but they will be sitting as a family court judge, rather than as a county court judge or in the High Court. Subject to your Lordships’ approval, the effect of this instrument will be that appeals from a decision or order of the judges or officeholders listed in the order are routed away from the Court of Appeal to the family court.
For example, where there is an appeal against a decision of a bench of lay justices, or a district judge sitting in the family court, about which parent a child should live with, or whether a care order should be made in relation to a child, that appeal will be heard in the family court not the Court of Appeal. As I said earlier, this is not new. At present an appeal from the decision in family proceedings of lay justices or a district judge sitting in the magistrates’ court, or of a district judge sitting in a county court, is heard in a county court.
The level of judge that can deal with appeals routed to the family court by the destination order will be set out in a different statutory instrument under Section 31D of the Matrimonial and Family Proceedings Act 1984. It will be made by the Lord Chief Justice, or his nominated officer, after consultation with the Family Procedure Rule Committee and with the agreement of the Lord Chancellor. That instrument is not yet before Parliament, but I can reassure noble Lords that the plan is for appeals in the family court to be heard by a circuit judge, as now. However, there will be greater flexibility to ensure that judicial resources are used more efficiently and that the appeal is heard at an appropriate level. For example, there will be provision for a judge of High Court level sitting in the family court to be able to hear an appeal which would otherwise be heard by a circuit judge, where a designated family judge or a judge of High Court level considers that the appeal would raise an important point of principle or practice.
Noble Lords may have also noted that this order makes provision for decisions of certain tribunal judges and court martial judges to be routed away from the Court of Appeal. I should explain that this provision seeks to future-proof the legislation. These judges cannot currently hear family proceedings, but the Crime and Courts Act 2013 provides for more flexible deployment of the judiciary to make efficient use of resources. It provides for tribunal and court martial judges to be judges in the criminal, civil and family courts and for the judges of those courts to be tribunal judges. Although there is no immediate intention to deploy these judges in the family court, they are in fact judges of the family court. It would not be appropriate for appeals against the decisions of those tribunal and court martial judges listed in the draft destination order to go to the Court of Appeal, so this order routes appeals against any decision which they may make in the family court away from the Court of Appeal to the family court.
In addition, appeals against decisions by deputy district judges and justices’ clerks will be routed away from the Court of Appeal to the family court and be dealt with by a circuit judge sitting in the family court. Appeals from decisions of judges of the family court which are not listed in the destination order will go to the Court of Appeal. For example, an appeal from the decision of a circuit judge, or of a High Court judge sitting in the family court, will go to the Court of Appeal.
The provisions of the Destination of Appeals Order 2011 which relate to routes of appeal to a judge of a county court or to decisions of the Principal Registry of the Family Division when it is treated as a county court or care centre are revoked. The remaining provisions of the 2011 order are needed for the High Court hearing family proceedings.
I turn briefly to appeals against decisions relating to contempt. Currently the route of appeal for decisions concerning contempt of court is complex. The draft order we are considering today simplifies the routes of appeal so that appeals against such decisions will follow the same route as appeals against other decisions of the family court. The Crime and Courts Act 2013 enabled us to do this so that the process is streamlined and more transparent.
I now turn to the draft Justices’ Clerks and Assistants Rules, known together as the Justices’ Clerks Rules. The Crime and Courts Act 2013 provides for justices’ clerks and their assistants to give legal advice to lay judges of the family court—as they currently do in family proceedings courts—and allows for rules to set out where they may perform functions of the family court or of a judge of the court.
Primary legislation already exists that allows for justices’ clerks and their assistants to provide legal advice and assistance in the magistrates’ courts for criminal and family proceedings, and to perform functions of the court. Existing rules made under that legislation specify which functions they can perform. For the new family court, new rules are needed to specify the functions of the family court or of judges of the court which justices’ clerks and their assistants will be authorised to carry out.
During the passage of the Bill this House expressed some concern about which functions justices’ clerks would be able to perform in the new family court. I think that the noble Lord, Lord Beecham, put down an amendment at some stage which concerned this issue. I reassure the Committee that the draft rules being considered today have been agreed by the President of the Family Division as the Lord Chief Justice’s nominee, and were developed in close consultation with the Family Procedure Rule Committee. My noble friend Lord McNally gave an indication of our plans to the House on Report, and these draft rules reflect those plans. Therefore the draft rules allow justices’ clerks to continue to perform broadly the same functions as they currently do in family proceedings courts.
However, as previously explained to the House, they will be able to perform those functions in cases allocated to any level of judge of the family court rather than just when a case is allocated to lay magistrates, which provides greater flexibility. Therefore justices’ clerks will be able to assist in progressing cases, freeing up judges to deal with the more complex parts of the case. This should increase the efficiency of the family court and help reduce delay—something that we know can adversely affect cases with children involved.
These rules will also allow justices’ clerks to perform some functions for the first time. For example, these rules will allow a justices’ clerk to perform certain functions in undefended divorce or separation cases. These cases are relatively straightforward, but because of the volume of applications they take up a significant amount of district judges’ time. Allowing justices’ clerks to perform these functions will allow judges more time to deal with more complex matters. However, I stress that justices’ clerks will not be able to deal with any case where the application for divorce or other order is defended. These will continue to be dealt with by judges of the family court.
The draft rules also provide for assistant justices’ clerks, as now, to be able to perform functions when authorised by a justices’ clerk. In all cases, justices’ clerks and their assistants are subject to a duty to refer matters back to the court if, when considering carrying out an authorised function, they consider that it would be inappropriate for them to carry out that function. This is a duty to which justices’ clerks and their assistants are currently subject in the existing rules, so it is replicated in these draft rules.
I emphasise that although justices’ clerks and assistant justices’ clerks are employed by Her Majesty’s Courts and Tribunals Service, they are not subject to the direction of the Lord Chancellor or any other person when carrying out the functions set out in these rules or when giving legal advice or assistance to lay judges of the family court. They act independently, just as a judge would.
These rules largely replicate the functions that justices’ clerks can currently carry out for the court. They have been carefully considered by the members of the Family Procedure Rule Committee, and the president of the Family Division, who has agreed them. The rules will allow the extensive knowledge, skills and experience of justices’ clerks to be used, over time, to free up judges to deal with more complex cases and to improve the efficiency of the courts. I would further expect this to reduce delay and provide an improved service for families who need to use the new family court.
Finally, I will consider the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order which makes amendments to primary legislation required because of the creation of the new family court. Already a number of changes to primary legislation in the Crime and Courts Act 2013 are required because of the creation of the new family court. However, as is often the case with a change as complex as the creation of the family court, further changes to primary legislation are required to ensure the family court can operate effectively. Section 59 of the 2013 Act gives a power to make provision in consequence of the 2013 Act. This order will be made under that power and provides for various amendments to primary legislation which are needed as a consequence of the setting up of the single family court. It mainly replaces references in primary legislation to magistrates’ courts and county courts with references to the family court, as the magistrates' courts and county courts will no longer be able to hear family proceedings when the new family court is commenced.
The amendments to primary legislation set out in the order are required to ensure that the family court can deal with matters such as the enforcement of maintenance orders, which currently are often dealt with in magistrates’ courts but in future will be dealt with in the family court. The order also removes references to matters which will no longer be dealt with in magistrates’ courts. It will enable legal aid payments to be paid for advocacy in the family court, in circumstances to be specified in legal aid legislation. It also makes other amendments to primary legislation to ensure that the family court can deal with all the matters that it needs to, such as an application from a creditor in relation to a judgment debt, for information about what enforcement action to take to recover that debt.
The instruments presented today will enable the creation of a new family court that will be able to operate more effectively and efficiently, and provide an improved service to the families who need to use the court. The creation of a simpler court structure should make it easier for those who need to use the courts to do so. They will no longer have to work out to which tier of court to submit their application. Instead they will just submit it to the family court in their area and it will be allocated to the appropriate level of judge. Cases will no longer need to be transferred between the old tiers of court. Court users should experience a more streamlined and efficient service with a significant reduction in delays. These measures, together with others, will give the judiciary, working together with Her Majesty’s Courts and Tribunals Service, greater flexibility and allow it to respond to differences in demand to ensure the most efficient use of judicial and court resources.
I hope that noble Lords will feel able to approve these draft instruments so that the benefits of the single family court can be achieved. I therefore commend these draft orders to the Committee and I beg to move.
Lord Jones (Lab)
My Lords, I thank the Minister for his pithy and customarily helpful remarks. My questions stem from the most honourable tradition of asking questions in a Parliament to a Minister. Will he give specific reasons why the Government have resolved to end the interests of magistrates’ courts and county courts in these courts? That question is linked to another: shall we truly have more flexible and more efficient family courts? What were the magistrates’ courts doing wrong and what were their shortcomings? Why has it been resolved to end the historic relevance of the magistrates’ court with its three citizens? What insights have informed these decisions? Can we be absolutely assured that in the new arrangements the primacy of the interests of the child will be always borne in mind? Is that a reason for this large change? Surely we can raise this matter in this Committee and surely it has always informed Ministers and those who advise them.
Lord Beecham (Lab)
My Lords, I begin by breaking the habits of my three and a half year parliamentary career and not only thanking the Minister for the clarity of his exposition—to which we are accustomed—but also confirming that most of what is in these instruments is agreed by the Opposition.
I reassure my noble friend, who has just spoken, about some of his concerns. The family court concept does not exclude the magistrates’ court and lay justices; it includes them. They become part of a virtually seamless provision for dealing with family court matters. Therefore, the magistracy will remain involved. With regard to my noble friend’s last question to the Minister, the Minister may or may not be able to answer it but I can, because I have put the same question to the Magistrates’ Association. It is content with this afternoon’s legislation and has no objections to any of the proposals.
Lord Beecham
I can report to the Committee only what I have heard directly from the Magistrates’ Association. I have not heard from the Justices’ Clerks’ Society because I did not contact it. The Magistrates’ Association has no reservations about these matters.
Lord Jones
But is my noble friend speaking on behalf of the Magistrates’ Association and is he giving guarantees?
Lord Beecham
No, I cannot speak on behalf of the association. I am not, as it were, briefed by it or retained by it, unfortunately, but I assure my noble friend that it has communicated with me in the sense that I have just described. However, other reservations that my noble friend has expressed, which are not, strictly speaking, germane to the matters that we are debating this afternoon, raise concerns which I share and which, indeed, I have raised from time to time. They are also concerns which the Magistrates’ Association shares—that is, the current size of Benches that have been amalgamated and the position now occupied by the justices’ clerks on those Benches. The clerks are no longer responsible to magistrates but are responsible upwards, as it were, to the Ministry of Justice.
My noble friend rightly refers to the accessibility of courts and the closure of court buildings. However, one matter to which he has not referred but which has caused concern, which I have voiced previously, is the apparent growth in the role of full-time or part-time professional district judges as opposed to lay magistrates. There is concern about the imbalance that that is creating. Nowadays, some cases are dealt with virtually exclusively by district judges and the lay judges have a diminished role in consequence. These are genuine concerns which I think we need to explore further, but not for the purposes of the legislation today.
I have in the course of my 40-odd years—some of them rather odd indeed—practised as a solicitor and have spent much time briefing counsel. I am experiencing something of a role reversal today, because I have benefited from briefing from a distinguished family law practitioner, Michael Horton. I do not know whether he is somebody with whom the Minister is acquainted but he is an experienced counsel dealing with family matters. He raises a number of issues which do not undermine the thrust of the regulations that we are discussing but in some instances suggest that a little further clarification is required.
The first issue relates to the appeal to the family court. Where, within the family court, does the appeal lie? In other words, who in the family court will deal with the appeal? The Civil Procedure Rules lay out a definition of who will hear appeals. At the moment, it appears that a new practice direction to the Family Procedure Rules will identify the destination of appeals—that is, not just the broad destination of the family court, which, as I have just emphasised, reaches from the magistracy right through, ultimately, to the Court of Appeal—but what tier of the judiciary will deal with it? I understood the Minister to say that that either has happened or is about to happen—that the rules will be promulgated. They are to come into force in six or seven weeks’ time. I take it that they have been the subject of consultation and I should be grateful if the Minister could confirm that. If, by any chance, they have not yet been the subject of consultation, I strongly urge that they be made so.
Another issue raised is not a criticism at all but it arises from a welcome change to which I do not think the Minister specifically referred. It is the possibility of funding emerging from the change in rules which will allow payments to be made to charities, to be ordered by the family court. I am not quite clear of the intention here. but one hopes that such payments could cover the advice services provided by voluntary organisations to those engaged in family disputes. It would be helpful to have clarification of whether that is in fact the intention. It could make a significant difference in facilitating support for litigants who are not able to pay for or obtain legal aid for advice, as would be the case in a number of instances, if voluntary organisations could be the recipients of money as the result of such an order.
Lord Faulks
I am very grateful to the noble Lord, Lord Jones, for his contribution to the debate, and to the noble Lord, Lord Beecham, for his observations.
The central question behind the speech given by the noble Lord, Lord Jones, was, “Why do we need this reorganisation of a family court, and why ignore the experience there was in the magistrates’ court?”, and that we should take into account in particular the convenience for local people to use their magistrates’ court. I quite understand that concern. However, as the noble Lord, Lord Beecham, quite rightly said, we will not lose that expertise. Magistrates will still deal with family proceedings, but within the overall context of a family court. Previously we had these various tiers, but now we have a unified court. However, they will all be the family court, albeit some will sit in magistrates’ courts, some in county courts and others will physically sit in the High Court, depending on the allocation and the level of the dispute. So that much-valued expertise will not be lost. What is intended, as I indicated in my opening remarks, is that there should be increased flexibility and a better use of appropriate judicial resources. I am not sure that those qualified lawyers who act as justices’ clerks would welcome being described as a lower level of judge, as the noble Lord, Lord Beecham, described them. They are very often qualified and, if not qualified, have a considerable amount of relevant experience, and they will not be given any tasks that they are performing now and will perform in future unless it is clear that they have relevant experience and expertise.
The creation of the family court was recommended by the family justice review. It was considered that the new structure would limit delays and simplify the whole question of people who go to their local area with a particular issue, which will then be allocated to the appropriate level of court. It will not be the enemy of localism, which I think was the concern expressed by the noble Lord, Lord Jones.
Lord Jones
Will the Minister write on those questions that he may not be able to field, such as the ones that I have posed?
Lord Faulks
Yes, I will certainly write in so far as I do not answer all the issues raised by the noble Lords, Lord Jones and Lord Beecham. I fear that I will not be able to answer all the points, but I hope that I can at least reassure the noble Lord that the magistracy will still be involved in the matter, as it was before, and will not lose its expertise—it will simply be called something different. There is some reallocation of its tasks, but not a loss of its important role.
The closure of courts generally is a different issue from that which we are considering. There are always difficult arguments on the cost of having a court that is infrequently used as against the convenience for local people. We are of course anxious that the quality of decision-making should be high and that there should be convenience, and we do not anticipate that there will be a radical change in individual cases. The noble Lord mentioned the position in Llanelli, where he feared that there would not be enough local expertise. I am assured that there would not be a radical transfer unless the court service was satisfied that there was the appropriate level of expertise in a local area.
I turn to issues raised by the noble Lord, Lord Beecham. He said that he was concerned that there had not yet been a specific route for the appeals identified. I indicated in the course of my remarks that they would be set out in a statutory instrument under Section 31D of the Matrimonial and Family Proceedings Act 1984, which would be made by the Lord Chief Justice or his nominated officer after consultation with the Family Procedure Rule Committee and with the agreement of the Lord Chancellor. The rules are made with the consultation of the committee, which includes expert practitioners, justices’ clerks and judges. It also includes a representative of the court users, so it should be possible before the appropriate tier of appeal is finalised for all interested parties to have an opportunity to have their views reflected in the designation. Although I understand the noble Lord’s anxiety, it is unlikely that he will find the organisation of appeals in any sense out of sync with the construction of appeals that exist generally in civil procedure—that is, there will be an appeal from a court to a higher level of court and, depending on where the initial allocation begins, a superior court will then come to consider the relevant appeal.
The noble Lord, Lord Jones, asked a question about the consultation with the Magistrates’ Association, which was very helpfully answered by the noble Lord, Lord Beecham, who was able to confirm that it had been consulted. The statutory obligation was to consult the family practitioners’ rules committee, which comprises representatives of the lay magistracy, justices’ clerks and a number of judges, so it would have been included in any event in that consultation.
The noble Lord, Lord Beecham, asked about payments to charity. I am told that the amendment to Section 194 of the Legal Services Act 2007 will mean that the family court will be able to order a party to make a payment to a charity. This mirrors the current position in the civil courts and applies where a party has been represented free of charge. It will be for the court in the individual case to determine to which charity the payment should be made. I hope that that answers that point. The noble Lord also made a point about the increase in costs and the fees for divorce going up. Yes, if it is dealt with at a lower level then I understand his point about that. A final decision has not yet been made on whether to increase the fees for divorce, although this matter was consulted on. I will certainly take back his observations.
Perhaps I have not quite sufficiently answered the question about the general sufficiency of the numbers of justices’ clerks. It is actually the case that the assistant justices’ clerks will be doing most of the work in courts. There are about 1,400 of them and the justices’ clerks are managers, so there is one in each area. There are 26. Her Majesty’s Courts and Tribunals Service has assured Ministers that there will be sufficient justices’ clerks to perform the various functions which they are able to do as a result of this designation.
I think that I have answered most of the questions—no, I have not.
Lord Beecham
There is just the question of interest, upon which the Minister might care to write to me. I presume that he has not been briefed on that yet by those behind him.
Lord Faulks
The position is that I cannot give an answer, I am disappointed to say, but we will definitely write on that issue. I hope that the noble Lord will be satisfied with the answer.
I am grateful for the helpful questions from noble Lords and, notwithstanding the reservations in the points that have been helpfully made, I hope that your Lordships will agree that these draft instruments are an important step in simplifying the family court system and making it more accessible to families.
Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014
(10 years, 8 months ago)
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Lord Faulks
That the Grand Committee do consider the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
Justices’ Clerks and Assistants Rules 2014
(10 years, 8 months ago)
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Lord Faulks
That the Grand Committee do consider the Justices’ Clerks and Assistants Rules 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
Social Security (Maternity Allowance) (Participating Wife or Civil Partner of Self-employed Earner) Regulations 2014
(10 years, 8 months ago)
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Lord Bates
That the Grand Committee do consider the Social Security (Maternity Allowance) (Participating Wife or Civil Partner of Self-employed Earner) Regulations 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
Lord Bates (Con)
My Lords, in order to make the best use of parliamentary time there are two instruments for debate today. I have agreed with my noble friend Lord Faulks also to present an instrument which falls within the remit of his department, the Ministry of Justice. I will speak also to the draft Legal Aid (Information about Financial Resources) (Amendment) Regulations 2014, which bring forward a measure that is consequential on my department’s regulations. Both regulations were laid before both Houses on 21 January 2014 and are intended to come into effect from 1 April 2014.
I am satisfied that the Social Security (Maternity Allowance) (Participating Wife or Civil Partner of Self-employed Earner) Regulations 2014 is compatible with the European Convention on Human Rights. Likewise, my noble friend Lord Faulks and I are satisfied that the Legal Aid (Information about Financial Resources) (Amendment) Regulations 2014 is also compatible with the European Convention on Human Rights.
First, the Social Security (Maternity Allowance) (Participating Wife or Civil Partner of Self-employed Earner) Regulations 2014 provide for a maternity allowance to be made available to women who are neither employed nor self-employed in their own right, although they regularly take part in activities related to the business of their self-employed spouse or civil partner. They must be neither a partner nor an employee of the business concerned.
These regulations are being introduced in order to fully comply with European directive 2010/41, which was adopted on 24 June 2010 following negotiation between member states. The directive assures equal treatment between men and woman who are self-employed. It protects self-employed women during pregnancy and motherhood, together with women who are not self-employed, who habitually participate in the activities of their self-employed spouse or civil partner’s business.
The UK already complies with most of the directive through existing equality legislation, primarily the Equality Act 2010. However, Article 8 of the directive legislates for a maternity allowance to be paid to self-employed women and spouses or civil partners who habitually participate in the activities of a self-employed worker. This is required to enable them to interrupt their activities as a result of pregnancy or motherhood. We already provide a maternity allowance to self-employed women.
Women who contribute to their spouse or civil partner’s business by regularly helping out in an unpaid capacity could bring themselves within coverage of the maternity allowance and other social protection by becoming partners in, or employees of, the business. There are strong business and social incentives for doing this, which include tax benefits for the business and greater social protection for the woman. However, for women who do not wish to take these steps we must bring forward these regulations to ensure that we fully comply with the directive. If we were not to bring these regulations forward, we would not be fully compliant with the directive, which would put the UK at significant risk of being subjected to infraction proceedings by the European Commission. This would attract an initial lump sum fine estimated at around €11 million with a daily accrual until we are fully compliant.
The regulations will provide a maternity allowance to women who are due to give birth on or after 27 July this year and regularly assist in the self-employed business of their spouse or civil partner but are neither employees nor business partners. For the first time, spouses or civil partners of the self-employed worker who help in the business and receive no income will be able to receive a maternity allowance enabling them to take a break in their activities as a result of pregnancy.
In line with the Government’s objective to avoid the gold-plating of EU legislation, we will not go beyond the minimum requirements of European directives. This means that benefit will be payable at the weekly rate of £27 for a maximum of 14 weeks. This reflects the lowest rate of maternity allowance that is currently payable to working mothers on a very low income to be paid for the minimum duration specified by the directive.
This rate is less beneficial than the standard rate of maternity allowance currently awarded for up to 39 weeks to women who are eligible because they are employed or self-employed in their own right—the standard rate from April 2014 being £138.18. The higher rate and longer payment period of maternity allowance is intended to provide a measure of earnings replacement to enable women to take a break in their occupation at the end of their pregnancy or soon after childbirth. It would not be right to make a corresponding award of maternity allowance to women who have no earnings to replace. A number of stakeholders have been notified of this forthcoming change: for example, Netmums, Mumsnet, and Maternity Action. Maternity Action has advised that it supports the change and will help us to raise awareness of it if it is passed by your Lordships’ House.
I trust that your Lordships will agree that the regulations will help women who are pregnant or have recently given birth where, prior to that, they have lent unpaid support to their spouse or civil partner in helping them to build and maintain a self-employed business.
I turn to the draft Legal Aid (Information about Financial Resources) (Amendment) Regulations 2014. Those draft regulations amend the Legal Aid (Information about Financial Resources) Regulations 2013 that came into force on 1 April 2013. They add the maternity allowance being introduced for participating spouses or civil partners of self-employed earners to the list of prescribed benefits in the schedule to the 2013 regulations.
If an individual is in receipt of a prescribed benefit, the director of legal aid casework in the Legal Aid Agency, in assessing an individual’s income for the purpose of the legal aid financial means test, may request information about the benefit from various other government departments, including the amount that the individual is receiving. Having accurate information about the financial resources of an individual who is applying for or in receipt of legal aid is an important part of ensuring that only those eligible for legal aid receive it, and that those who can afford to contribute to the cost of their legal representation are made to do so. I commend the instruments to the Committee.
Baroness Scott of Needham Market (LD)
My Lords, I support the social security regulation which we are debating today—not just because it avoids an €11 million fine. I think it is a good thing in its own right. For once, we have a welcome change to the benefits system in that it is beginning genuinely to reflect the diversity of people’s lives and the lives of women in the workforce. That is a very good thing indeed. It is bringing a new group of women, predominantly from the very small, micro-business sector, within the ambit of maternity benefit. I just wish that the gold-plating had been left in place just on this one occasion so that they could have had a benefit more in line with everyone else.
I want to ask two questions. The first is about disseminating information, because this is a very difficult group to reach. They do not tend to be members of chambers of commerce, and that sort of thing. I do not have a particular answer, but I wanted to put in the plea that all efforts are made to ensure that women who are likely to benefit actually know about it and are able to. We hope that the Government’s new enterprise allowance scheme will be successful, so we could have even more very small businesses starting up in the coming year or so, so we need to get on top of how we can ensure that women know that these benefits are available.
Secondly, I welcome the discussions on shared parental leave—I know that the Deputy Prime Minister has been very keen on this and it has some support within government. It would provide welcome flexibility, but I am curious as to how these arrangements might work if we have shared parental leave. With those questions, I welcome the instrument.
Baroness Sherlock (Lab)
My Lords, I thank the Minister for his explanation and I look forward to hearing the answers to those two excellent questions. I do not propose to ask any questions about the second order, as I accept the Minister’s assurance that it is consequential upon the first. However, I should like to ask a few questions so as to understand better the implications of the first order, relating to maternity allowance.
The first question relates to the point that has just been made about the rate being so low. The standard rate of maternity allowance is £136 a week, or 90% of average weekly earnings, for up to 39 weeks. In this case, the Government decided to settle on £27 a week for 14 weeks. I think I heard the Minister say that the aim of the allowance was to enable women who regularly help in the business of a spouse or civil partner to take a break from their activities towards the end of a pregnancy or the start of motherhood. Have the Government made any assessment of whether the amount of money involved is such that it is likely to make taking that break possible when otherwise it would not have been?
Secondly, the Explanatory Note says that 1,300 women will be affected by the provisions at an estimated cost of £0.5 million. No impact assessment was carried out, so we do not know whether the Government considered other approaches. Clearly, there is quite a wide range between what the Government are doing and an allowance that is fully gold-plated. Did the Government consider bringing this in at an intermediate level and, if so, what kind of cost would have been implied?
Next, I should be interested in understanding what conditions a claimant would have to meet to qualify for maternity allowance under these circumstances. We have had a question about shared parental leave. I should also be interested in knowing what happens to someone who is adopting a child rather than giving birth, as the regulations are specifically about giving birth or having just given birth. Looking at the regulations, I do not think that someone in these circumstances would be entitled to statutory adoption pay, so would they be entitled to maternity allowance? Similarly, what happens if the child is stillborn or dies immediately after birth? Certainly, I think that SMP is payable if a child is stillborn after 24 weeks, but is there a read-across to this provision?
I was pleased to hear the question about communication because I was going to ask something similar. The Minister made the very good point that there may be strong reasons why women in these circumstances may be better off being paid by the business and being able to pay national insurance. I am very conscious that the Pensions Bill is going through the House at the moment. Of course, if a woman in these circumstances does not end up with 35 years of national insurance payments in her own right, she may find that when she comes to retire she is not entitled to the new single-tier pension, and in future she will not be able to claim on her husband’s contributions either. Therefore, when the Minister looks at the communications campaign, I wonder whether anything can be done to make sure that the opportunity is taken to communicate to those women so that they understand the consequences of not paying national insurance and of not coming within the national insurance and tax system.
Finally, I have a practical question. Can the Minister explain the tax and tax credits treatment of these benefits and say whether there is any passporting or link across to any other benefits as a result of receiving this maternity allowance?
Lord Bates
I thank my noble friend Lady Scott of Needham Market for her contribution and I also thank the noble Baroness, Lady Sherlock, for raising these points. Some very good questions have been asked and I shall do my best to answer them.
My noble friend Lady Scott asked whether women getting this maternity allowance will have access to shared parental leave and a pay scheme. The answer is no, and I am sorry to be disappointing. The statutory shared parental leave and pay provisions are designed for employed couples to share the care of their child. It would be available to eligible women who are entitled to maternity leave, statutory maternity pay or maternity allowance because they are employed or self-employed earners—that is the key word. Therefore, women receiving this form of maternity allowance will not have access to that scheme as they will be neither employed nor self-employed in their own right.
My noble friend Lady Scott and the noble Baroness, Lady Sherlock, asked how we will encourage take-up of the allowance, and we talked about some of the publicity which is being received. We have identified stakeholder groups relating to both self-employment and maternity, and they have been informed of the change. They include Maternity Action, Netmums, Mumsnet, Bounty, Sands, Citizens Advice, the Royal College of Midwives, the British Medical Association and HMRC. We will be publicising the qualified conditions and the claim process on direct.gov.uk, as well as providing relevant guidance and claim forms. Needless to say, if there are any specific organisations which the noble Baroness thinks it would be helpful to include in that list, we will be delighted to hear from her.
I turn to the points raised by the noble Baroness, Lady Sherlock. She asked about the sad cases where there is a stillborn child. The mother would still be entitled to maternity allowance, in the way that statutory maternity pay applies at present. These provisions do not extend to adoption.
Baroness Sherlock
Before the Minister leaves that point, I understand the Government’s argument that they do not wish to gold-plate anything that comes from Europe. I was pushing him slightly because he gave two different reasons for doing this. One was not to gold-plate; the other was to give the women an opportunity to take a break from their activities. My question was whether he had done any assessment of whether the level and duration of the payment would be adequate to meet that objective.
Lord Bates
The answer is that no such assessment was undertaken.
The noble Baroness asked whether this maternity allowance will passport through to other benefits. It is up to each provider of those passported benefits to decide whether to extend their passported benefits to this group. Of course, in the same group of regulations we are talking about changes being made to the legal aid provision, so there is some element of a knock-on effect to that. I am grateful to all noble Lords who have spoken.
Baroness Sherlock
I am happy for the Minister to write to me but I asked about the tax treatment of the allowance and the tax credits position. He may feel free to write if that is easier.
Lord Bates
I apologise to the noble Baroness. I will follow that up in writing.
I am grateful to all noble Lords who have spoken. I thank them for their interest in the debate and take the opportunity to say that I hope we agree that the Social Security (Maternity Allowance) (Participating Wife or Civil Partner of Self-employed Earner) Regulations 2014 ensure that those women who participate in the business of their self-employed spouse or civil partner can receive maternity allowance to enable them to interrupt their activities due to pregnancy or motherhood, and that the Legal Aid (Information about Financial Resources) (Amendment) Regulations 2014 contribute to ensuring that those entitled to help with their legal aid costs receive that help, while those who can afford to pay, do so.
Legal Aid (Information about Financial Resources) (Amendment) Regulations 2014
(10 years, 8 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
That the Grand Committee do consider the Legal Aid (Information about Financial Resources) (Amendment) Regulations 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
Social Security Benefits Up-rating Order 2014
(10 years, 8 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
That the Grand Committee do consider the Social Security Benefits Up-rating Order 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
Lord Bates (Con)
My Lords, the Guaranteed Minimum Pensions Increase Order 2014 and the Social Security Benefits Up-rating Order 2014 were laid before the House on 27 January 2014 and I am satisfied that they are compatible with the European Convention on Human Rights.
I start by touching briefly on the Guaranteed Minimum Pensions Increase Order, which provides for contracted-out defined benefits schemes to increase their members’ guaranteed minimum pensions that accrued between 1988 and 1997 by 2.7%, which is in line with inflation as at September 2013. As noble Lords will be aware, we are not here to discuss the Welfare Benefits Up-rating Order 2014, which was made on 24 January. The rates increased by 1% in that order were debated in Parliament during the passage of the Welfare Benefits Up-rating Act 2013.
Turning to the Social Security Benefits Up-rating Order, I would like to start with the increase in the basic state pension. One of this Government’s first acts was to restore the earnings link to the basic state pension. Indeed, we went a step further and secured a triple lock for pensioners—a commitment from the Government to increase the basic state pension each year by earnings, prices or 2.5%, whichever is the highest. This year, as prices were greater than average earnings and 2.5%, the basic state pension will increase by CPI at 2.7%. The new rate of basic state pension will be £113.10 a week for a single person, an increase of £2.95 from last year. This means that from April 2014 the basic state pension is forecast to be around 18% of average earnings, a higher share of average earnings than at any time since 1992. Our triple lock commitment means that someone on a full basic state pension can expect to receive £440 a year more than if it had been up-rated by earnings since the start of this Parliament.
On pension credit, we have taken an important decision to ensure that the poorest pensioners are able to benefit from the effects of our triple lock. That means that, rather than rising in line with earnings at 1.2%—the minimum required by legislation—the standard minimum guarantee credit in pension credit will be increased by 2% so that the poorest pensioners benefit from the full cash value of the increase in basic state pension. Single people will receive an increase of £2.95 a week while couples will receive an increase of £4.45 a week. Consistent with our approach last year, the resources needed to pay for that above-earnings increase to the standard minimum guarantee have been found by increasing the savings credit threshold, which means that those with higher levels of income will see less of an increase.
I can confirm that additional state pensions will rise in line with inflation at 2.7% in 2014-15. That means that the total state pension increase for someone with a full basic pension and average additional pension will be around £196 a year. The decisions we have taken on pensioners reflect the Government’s belief that even in difficult economic times it is important to protect those who are less able to increase their spending power.
That belief is reflected in our decision to ensure that those benefits that reflect additional costs because of disability will be protected and will be increased by the full value of CPI at 2.7%. These include the personal independence payment, disability living allowance, attendance allowance, incapacity benefit, disability premiums in working-age benefits, the support component of the employment and support allowance, and the limited capability for work and work-related activity element of universal credit. That is also true of the carer’s allowance and the carer premium, both of which will be uprated in line with inflation.
In conclusion, I ask your Lordships to note that at a time when the nation’s finances remains under real pressure, the Government will be spending an extra £3.3 billion in 2014-15. Of that, about £2.7 billion is for the state pension and over £600 million will go to people of working age, with nearly £600 million of those increases going to disabled people and their carers.
The uprating commitment I have outlined today will give real support to the poorest and most vulnerable in society, ensuring that people who are least able to change their incomes are protected against increases in the cost of living. On that basis, I commend the orders to the Committee, and I beg to move.
Lord German (LD)
My Lords, I have a number of questions. First, I welcome the triple lock. This is the first time that we have seen prices as the lock that has come into play, which means that pensioners will always benefit from the best of the three options. This is the first time we have seen one of the three locks.
I will spend a few moments on the rationale behind the 1%, 2% and 0.7% for the pensions and other matters. This is really about what is contained in the Government Actuary’s report. For the first time, we see from the Government Actuary what the state of the fund is—the fund from which these benefits will be paid—not just for this year but through to 2018-19. I believe that this is the first time we have been able to have those projections. The report clearly shows that there are a number of difficult years to come, in particular 2015-16. Next year the actuary projects that the Government will have to put in £8 billion extra in order to keep the fund at its one-sixth level of what goes in and what comes out, and what is left in the fund. However, the last table of the Government Actuary’s report shows that the following year will be even more difficult. Can we have some comparison for benefits’ sake?
I will be quite happy if my noble friend wishes to send me information about this or to write to me about it. As we are projecting forward six years to 2018-19, can we have the figures showing how much has had to be contributed in the past 10 years, say, so that each year we can see what the graph or the direction of travel is? Quite clearly, it is not the usual case that the Government have to top up the fund to achieve that one-sixth balance. It might be useful to know how often that happens and what the projections are for the future.
I have just two short questions, one of which relates to the implementation dates in the order. I should probably know the answer to this question, but I would be very grateful if the Minister could answer it, although it is a question similar to, “Why do we always have elections on a Thursday?”. For the dates of implementation, which are contained within this order, we have 1, 7, 9 and 10 April. I know that it does not mean very much if someone has to wait a week longer for their benefit to come through, but why is it not possible to have a single implementation date at the beginning of the financial year, or is there some administrative reason for that?
My second and final question relates to the investments in the national insurance fund. I noticed that the projection from the Government Actuary is that they will fall from £127 million to £90 million. If the investments made £127 million last year, which obviously supported the amount of money that could be put into benefits without having to top them up from the Treasury, why do we see a lower projection in the coming year when all the signs are that investment opportunities are greater in the coming year than they were in the past year? I should be grateful for some explanation, but I will be perfectly happy if my noble friend wants to do that for me in writing.
Lord Kirkwood of Kirkhope (LD)
My Lords, I am pleased to follow my noble friend Lord German, who asked some pertinent questions. I want to take a slightly different approach and put these uprating orders into the context of a longer timescale. As I think we all know, changes to upratings will generate more savings for the department over the middle to longer term than any other single change, so it is important for Parliament to stay abreast of what is going on.
My first point is about process. In the old days—he says, reverting immediately to nostalgic mode—this used to be a huge debate. My noble friend the Minister will know, because he was there and was briefly a Minister, that the uprating order was a big event then, when we were spending millions, not billions as now. There was a full Chamber in the House of Commons and those numbers were keenly contested. It has now come to this, at the fag end of a late Monday, with the Minister and two or three lonely survivors discussing these very important matters. We must make sure that the parliamentary process is maintained because the scrutiny of these matters is important.
The process which we now have is a bit confusing to me. The Minister is absolutely right that the Welfare Benefits Up-rating Act 2013 basically takes out the working-age benefits from consideration this afternoon. I do not think that is for all time coming but I am not sure. I assume that the 2013 Act will render it nugatory to discuss working-age benefits until that Act falls away, after its third year. Presumably we will then go back to the uprating system as before. I am also a bit nervous about losing sight of tax credits and child credit Treasury-type benefits, which in the old days were also all subsumed into the one comprehensive debate.
I am even more confused about the annually managed expenditure proposals which the Chancellor has been talking about. I am always suspicious about Chancellors talking about social security department business as, in my experience, they invariably make a hash of it. I would stiffen the Minister’s resolve to resist these territorial ambitions from the Treasury, which are very hard to contain. I can see some heads nodding, so I am obviously on a strong point there.
The point that I am making is a simple one. In Parliament, we should insist on being able to have proper opportunities in good time to look at the comprehensive changes being made, even though they are getting more complicated, so that we can satisfy ourselves that at least we know what is going on and can make the best points to the Minister and his future heirs and successors. I am fearful that this is becoming so piecemeal that it is getting difficult to do. That is my first point and I suspect that the Minister will not disagree with it.
I would like to know what the additional costs of these orders are. They are basically pension-orientated. I have nothing whatever to say about the Guaranteed Minimum Pensions Increase Order. I have never had anything to say about that order; it goes on and it goes up, and that is fine. However, my impression is that there is £3 billion or so involved in increased spend and I would like to know to what extent, over the period of this order, that is derived from an increased caseload. In the middle to longer term, the demographics will obviously change regarding the proportion of the population. There will be more and more pensioners, so we will have more and more trouble paying for them, which is perhaps part of the answer to the important question that my noble friend Lord German asked. I would not mind being copied into any answer that he gets because it is a very important question. However, the caseload is bound to increase, so if that number increases, the costs will get bigger as the numbers get higher. I understand this, perhaps, more than most. As of the fiscal year 2014-15, we spend £211,000 million each year, every year, which is a serious sum of money. We really need to make sure that we understand how we are spending it and that we get control and make it as effective as we can. I should like to know the cost of these orders, just to keep track of the expenditure.
The Section 150 duty on the Secretary of State in the Social Security Administration Act 1992 is that he considers and reviews, and, in a kind of Delphic way, the answer comes out as CPI. I hope that the Minister would be able to give me some reassurances, after some of the evidence coming out from the archbishop, now cardinal, and the powerful intervention that he made about destitution. I do not think that he is right to say that the entire safety net has been withdrawn, but he is a serious man, and the Church of England and other churches are beginning to pick up the fact that some serious things are emerging in their localities. I think that they are correct about that, although I would not go as far as to say that the safety net was being removed. But that evidence is the kind of thing that I would hope somebody in Parliament would put in the box for the Secretary of State when he did the annual review.
There are other political issues as well. People like myself cannot understand why universal benefits for pensioners, in these circumstances when austerity is upon us, are not in the mix and being considered as possible savings. The fact that I get a winter fuel allowance is not appropriate to the financial circumstances that we are in. That is the kind of thing which I hoped the review would have looked at.
I was very struck by the Barnardo’s report just before last Christmas about the emergency food services now being used. The Minister and I have both watched these issues for a long time but I have never seen evidence as cogent as that—750,000 families. The emotional cost of rolling up and asking for food must be enormous. That is new and it cannot be ignored.
Finally—and I think that this is more hidden—the impact on local authorities’ service provision is beginning to be bigger than I have ever seen before in my past experience. That is characterised perhaps by the local welfare assistance fund, which I think the Local Government Association was right to complain that the Government seemed to be withdrawing funding from. These are the kinds of things which I hope the Minister will be able to tell me were thought through carefully in the department before the Secretary of State discharged his duty under the 1992 Act, because they are bits of evidence that are more cogent than I have seen in the recent past—and I have a longer list, but I shall spare him.
I am a member of the council of the Institute for Fiscal Studies, and I want to make a point about the 2.7% and CPI. I guess that the Government had no option but to go for CPI, because RPI is not appropriate any more—if discredited is too strong a word—and I can understand that. But there are problems with CPI in how it differentially impacts on low-income and high-income families. My speech will be a lot shorter, if the Minister says that he will read, or get somebody in his department to read, the IFS Green Budget of February 2014. Chapter 6 of that document says that,
“the average price level faced by households in the bottom quintile rose by 7.1 percentage points more than that faced by households in the top quintile between 2007-08 and 2013-14”.
That is a long stretch and 7.1% is a big figure. That is at page 126, in chapter 6 of the IFS Green Budget 2014. That figure struck me.
The other side of the question, looking at inflation, is on page 138 under the heading “Group specific inflation rates”. It states:
“Figure 6.10 shows that inflation rates since the recession have tended to be higher than average for low-income households … The average rate of inflation experienced by low-income households over the period 2008–09 to 2013–14 was 3.4%, compared with 2.4% for high-income households”.
These are snapshot quotes and you need to read the whole chapter to get the sense of the work that has been done by Oxford Economics, which did this work. This is very compelling evidence that it is dangerous just to go from mean average figures of inflation and prices because they impact differentially on different households and in different proportions of spend within family budgets, because lower-income people spend a lot more money on energy, food and the like than they do on mortgage interest payments. If I can have an agreement that somebody will read chapter 6, I will go on to my next point.
Although there is only a glancing reference in these regulations to universal credit and personal independence payments—it is the first time we have seen uprating orders for those two benefits and I wish them both well—the Minister and I both know that there is some controversy and uncertainty about the programmes and timetables for implementation for these benefits. I am sure that that will become clear during the period of the duration of these orders. Can the Minister say anything, even if it is in writing, about the timetable for it? The press comments and indeed the ministerial comments that have been made about the Atos origin contract for PIP understandably have caused a lot of uncertainty.
I have always believed that we have a problem in this country with the capacity of professional occupational health specialists. The Government are suffering from that, and any Government suffer from it. If you do not have the professionals—and it is a very skilled thing to do properly—any company, Atos or otherwise, will struggle to carry the weight of these hugely important and very onerous contracts. Can the Minister give us any comfort about the upratings contained in these orders as it relates to the personal independence payment and the timetable for dealing with Atos? Similarly, there are uprating elements in these orders about universal credit. If the Minister could give us any comfort on the timetable for universal credit and the ICT contract, that would be very welcome.
Finally, I noticed in the Explanatory Memorandum—they are always very instructive and helpful for these things, and I pay tribute to the poor people who have to write them—that the deductions for service charges on housing benefits for energy charges is 7.7% in the year to September 2013. I understand what service charges are and what rental agreement deductions are in housing benefit, and that they are not new. However, 7.7% is a big percentage. It might not be much—a couple of pounds—but that is a big change. I was grateful that the Explanatory Memorandum took the trouble to point it out to us. I hope that the Minister will take that back and satisfy himself that that is not an outlier figure as regards 2.7% increases here and there. Particularly when energy costs have gone up so dramatically over the recent past—there have been some quite significant increases—7.7% is striking. If the Minister can go away and satisfy himself that that is not a relative punitive increase in a deduction, I would be very grateful.
My main concern is that Parliament, over the distance, is able to track low-income households in particular. As we go into fiscal consolidation—I am sure we will and I hope we do, the sooner the better—differentially, as incomes go up the thrust in controlling the benefits spend keeps benefits down. Incomes go up and the difference gets too great. As parliamentarians—and I know that my noble friend takes an interest in these things—we are bound to make sure that we do everything we can to protect the poor.
Baroness Sherlock (Lab)
My Lords, I thank the Minister for his explanation of the orders, and the noble Lords, Lord German and Lord Kirkwood, for their contributions. I would like to add myself to the circulation list for this exciting reply to the questions of the noble Lord, Lord German. Is the Minister willing to place a copy in the Library, given that it might be of interest in years to come? They are very good questions.
I share the hope of the noble Lord, Lord Kirkwood, that Parliament retains a sense of the importance of these orders. The decisions taken here by Parliament will affect the living standards of millions of people over the next year. They really matter, and if we ever get to the stage where we stop taking them seriously we will be failing in our duty. I pay tribute to the noble Lord, Lord Kirkwood, who turns out every year, come rain or shine, although I am disappointed that he had nothing to say about the GMP. I look forward to a year when I find something to say to it, but I am not going to ask any questions about it either.
Much has been made of the fact that the Government are uprating pensions by the triple lock. That is welcome as far as it goes. The comments about RPI notwithstanding, will the Minister acknowledge that the triple lock has so far been less generous than the RPI uprating it replaced? It was not used in the first year. I notice that my right honourable friend Stephen Timms pointed out, when this order was debated in another place, that the RPI last September was 3.2%, whereas the pension uprating delivered by the order, as the Minister said, is 2.7%. My right honourable friend said that the triple lock has delivered a lower uprating than the previous formula in each of the three years it has been used. The effect of that is that in RPI terms it is a real-terms cut for the third year in a row.
More concerning is that the standard minimum guarantee element of pension credit is to be increased by only 2%. This reduces both its real-terms value and its value relative to the basic state pension. One of the consequences must be that the poorest pensioners find their pension income falling in real terms. The Minister, I am sure, can confirm that. I would be very interested in the Minister’s answer to the question of the noble Lord, Lord Kirkwood, about cost. If the value of some of these benefits is falling, but the spend is rising, is caseload the reason? I would be interested to know.
The decision on pension credit is significant not just for those currently dependent on pension credit, but potentially for all those who will receive the new single-tier pension, which is due to be introduced in April 2016, if the Pensions Bill currently going through the House receives Royal Assent. The Government have signalled, during our deliberations on that Bill, that they propose to introduce the new single-tier pension at a rate above the prevailing rate of pension credit. By reducing the value of pension credit in real terms, are the Government not giving themselves the option of introducing the single-tier pension at a starting rate lower than might have been the case had pension credit maintained its value in real terms?
Can the Minister help me on another point? As the premiums payable to pensioners with working age benefits will be uprated in line with pension credit rates, does that also mean that they too will face a real-terms cut? Will the Minister confirm that? Also, what assessment has he made of the impact on pensioners with small savings of the Government’s decision to increase the savings credit thresholds by 4.4%, some way above inflation? I know that the Government are keen for people to do the right thing and to save, but the reason for introducing a savings credit was so that people who had put money aside would still find themselves better off than those who had not. Will the Minister explain the Government’s thinking on that?
I also have some questions about process. I am with the noble Lord, Lord Kirkwood: I fear that I may have lost track of some uprating that should have happened. If I tell the Minister what I think is happening, perhaps he will correct me where I go wrong. As I understand it, the Welfare Benefits Up-rating Order 2014 uprates by 1% those on benefits covered by the Welfare Benefits Up-rating Act. The protected benefits are covered by this order. So what happens to tax credits? Where did they get uprated? Where was the benefit cap uprated? I know that it has been, but I am not quite sure where that happened. Also, are all the elements of universal credit uprated in this order and, if so, where are the work allowances uprated? I could not see them.
I have two final questions. First, on childcare, it seems to me that the childcare element of universal credit is not being uprated at all. Can the Minister explain why not? If it is not being uprated at all, that is a significant real-terms cut. The last annual childcare cost survey in 2013 from the Family and Childcare Trust—what used to be the Daycare Trust—found that costs had risen by an average of 6% the previous year, more than double the rate of inflation. If the decision is made to cut that childcare element in real terms, coming on top of the Government’s decision to cut the proportion of childcare costs in universal credit to 70%, will that not have a significant impact on the ability of working parents to afford childcare? There was no impact assessment, and I was not able to work out what the effect of that was. Have the Government made any assessment of the impact on working parents of that decision on childcare and, if so, what is it?
Finally, I should be very interested to hear the answers to the questions from the noble Lord, Lord Kirkwood, on PIP, for example, where I have grave concerns about the implementation. The recent report is not encouraging in that respect. Also, I should like to understand to what extent, if at all, the Secretary of State is using discretion in making judgments about the appropriate levels of uprating, given the concern that abounds now about the use of food banks and the extent of poverty among people who are in receipt of benefits.
Lord Bates
I thank noble Lords for their questions. All Members who have spoken are renowned experts in the field. Until a few months ago, I was joining from the Back Benches in scrutiny of such orders, so I sense the expertise that lies behind the pertinent questions which have been asked. I was particularly struck by my noble friend Lord Kirkwood’s question about how small is the audience for a mere £3.3 billion of taxpayers’ money to go to the poorest in society. That is a worthy point to make, and it would be absolutely ungallant of me to point out the level of participation from the Liberal Democrat Benches and the absence of participation from the Opposition Benches.
Lord Bates
We are a coalition—we share the point. The point is that I think that there is a genuine cross-party support. For example, the triple lock on pensions is welcome, it is working and it is delivering real-terms increases to pensioners.
If I may, I will go through the points raised in the order in which they were raised. My noble friend Lord German raised the question of the Treasury grant to the National Insurance Fund. It is not a question of the National Insurance Fund running out of money. Making provision for such grant has no overall impact on the Government’s finances. It is done primarily for accounting purposes to ensure that the National Insurance Fund complies with the Government Actuary’s recommendation of maintaining a working balance of one-sixth of the expected benefit expenditure in 2014-15. My noble friend was absolutely correct to point out that at least now the information in the forecast is being made available in the Government Actuary’s report. He asked me a specific point about whether we will look at that historically over the 10-year period. I should say that we think that the grant has not been required over that period but, as one of the paragraphs in the probably lengthy letter that I shall be sending to noble Lords, I shall cover that important point and I thank him for raising it.
There was a smart observation asking: why the different dates. They are in place for good administrative reasons, including taking into account the prescribed payment days of different benefits. I know that there might be a follow-up question asking why there are different payment days but perhaps we can just say that that is the answer. However, the noble Lord puts his finger on an interesting point.
My noble friend Lord Kirkwood asked whether we would ensure that working-age benefits will be debated once the Bill is finished. Working-age benefits will be debated again from 2016-17. I will turn to the IFS Green Budget in a minute. My noble friend and the noble Baroness, Lady Sherlock, asked about the uprating of tax credits. The Tax Credits Up-rating Regulations 2014 will uprate certain elements of tax credits by CPI from 6 April. These were laid in draft form on 12 February and are due to be debated later in March. The Child Benefit and Tax Credits Up-rating Order 2014 will increase certain elements of tax credits and the rate of child benefit by 1% from 6 April and 7 April respectively. That was made on 24 February.
My noble friend Lord Kirkwood also asked about how much of the increase in expenditure is in relation to caseload increases. Clearly, caseload is an important factor in the overall expenditure, which is why it is important to make pension spending more affordable over the longer term, including, for example, the changes we are making through increasing the state retirement age. As regards the delay in implementation of the personal independence payment, PIP has been successfully introduced using a controlled approach to learning lessons as we go along in a live environment. We have been very clear that PIP will be introduced in a gradual way. Disabled people have wanted us to take time to get it right, which is what we are doing. Natural reassessment is under way in several areas and we will continue to monitor and evaluate it before making any further decision on widening the reassessment rollout.
My noble friend also asked whether we are going to introduce new eligibility criteria for winter fuel payments. Winter fuel payments are non-contributory and were designed to give older people in the UK reassurance that they can keep warm during the cold weather. The Government intend to bring in an eligibility criterion based on country of residence with payments going to only eligible people living in EEA countries with colder climates. Legislation will be needed to pass this before any changes are made.
On the UC rollout, our current planning assumption is that the universal credit service will be fully available in each part of Great Britain during 2016, having closed down new claims to the legacy benefits it replaced with the majority of the remaining legacy caseload moving to universal credit during 2016-17. Final decisions on these elements of the programme will be informed by the development of the enhanced digital solution.
My noble friend Lord Kirkwood also asked about the Green Budget report written by Paul Johnson and the excellent organisation, Oxford Economics, for the Institute for Fiscal Studies. He suggested that we read the report—it says here that I will do so. I think that I will apply the collective and say that I assure my noble friend that we will do so. It is a very important contribution. We have all said that we want these changes to be evidence based. When serious organisations such as the IFS produce serious research, of course we should take it seriously. We will monitor future developments. I am grateful to my noble friend for drawing that to our attention.
Baroness Sherlock
My Lords, I am very grateful to the Minister for explaining the process and what happens to the different benefits, but I am still chewing over the information that neither the childcare allowances nor the work allowances in universal credit will be increased at all and are therefore facing a real-terms cut. I might have let that go, but I am afraid that I will have to push back on his comment that all sides of the House agree that people will be much better off under universal credit than under the present system. Universal credit is simply a delivery vehicle. Whether or not people will be better off will depend on how generous the benefits are, the taper rates applied, the levels of work allowance or disregard applied and the interaction with other sources of support. In other words, unless the calculations done previously about the gains to work and participation rates in work are redone using these figures, we do not know whether people getting universal credit are going to be better off than they are now.
If the Minister cannot tell me now, could he please write to me later and place a copy in the Library on what assessment the Government have done about the effect on incentives to move into work and gains to work as a result of these real-terms cuts to components of universal credit?
Lord Bates
I appreciate the point which the noble Baroness has made and I was not suggesting that everybody would be better off under this provision. The question is one of removing perceived barriers to go back into work—to encourage people to move seamlessly off benefits and into work—without creating disincentives. That principle, I think I am correct in saying, is one that is widely shared on all sides of the House. How it actually applies and is worked out for individuals and individual families is clearly a crucial matter. On that point, I will add that to the list of issues about which I will write to noble Lords immediately following this debate.
I have already explained that we are spending an extra £3.3 billion on uprating pensions and benefits in 2014-15, enabling us to protect key benefits and vulnerable groups. This order protects pensioners, many of whom have worked hard all their lives and are no longer in a position to increase their income through work, and benefits, which reflect the additional costs faced by disabled people, again reflecting our commitment to protect those least able to increase their spending power. Those are principles which I hope all noble Lords can support and on that basis I commend these orders to the Committee.
Guaranteed Minimum Pensions Increase Order 2014
(10 years, 8 months ago)
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Lord Bates
That the Grand Committee do consider the Guaranteed Minimum Pensions Increase Order 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
House of Lords
Introduction: The Lord Bishop of Durham
Reading Clerk
(10 years, 8 months ago)
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The Lord Speaker
That this House do approve the appointment by the Lord Speaker, pursuant to the Clerk of the Parliaments Act 1824, of Mr Simon Peter Burton to be Reading Clerk on the retirement of Mr Rhodri Havard Walters.
The Lord Speaker (Baroness D'Souza)
My Lords, as I informed the House on 11 February, I have appointed Mr Simon Peter Burton to be Reading Clerk in place of Mr Rhodri Havard Walters. I therefore beg to move the Motion standing in my name on the Order Paper. The Question is that this Motion be agreed to.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con)
My Lords, we often talk in this House of the debt we owe to the staff. Today we have the opportunity to pay tribute to one who served us with great distinction for more than 38 years, Rhodri Walters—or perhaps I should say, using that well known phrase from our Letters Patent, our trusty and well beloved Dr Rhodri Havard Walters. Over those 38 years Rhodri served the House in many senior roles, including as private secretary to the Viscount Whitelaw; as Establishment Officer—now less elegantly known as Director of Human Resources; and as Clerk of Committees. He has also overseen the recruitment and development of many of the younger clerks in this House, a task which I know he much enjoyed. But he is perhaps best known to most of us as the Reading Clerk who so beautifully read out our punctuation-free Letters Patent as we were each introduced to the House. It was in this guise that he was described by a parliamentary sketch writer as the,
“master of ceremonies … A figure almost from Dickens. With his wig and spectacles and parchment voice, he was the learned town mouse, nose twitching as he waited”.
Dickensian, perhaps, but how reassuring to us as we stood there nervously.
Beyond the House, Rhodri has many interests, including rowing, skiing—indeed, he is on the slopes of St Anton as we speak—singing, gardening and his native Wales, where he has a house at which he will now be able to spend more time. I know the whole House will want to join me in thanking him for his long and loyal service and in wishing him a very happy retirement.
Baroness Royall of Blaisdon (Lab)
My Lords, on behalf of these Benches, I thank and pay tribute to Rhodri Walters for his excellent and indefatigable work throughout his career communicating the work of Parliament to a wider audience. He has led in the delivery of learning materials for the parliamentary studies module, an innovative educational partnership between the Houses of Parliament and universities which was launched in 2012. As many noble Lords will know, he was the author, together with Sir Robert Rogers, of How Parliament Works, a uniquely authoritative yet accessible account of how Parliament works. The seventh edition, I can tell noble Lords, will be available in all good bookshops soon. The sixth edition, labelled a “a rare treat” by one commentator, was described by Andrew Marr as,
“clear, elegant, invaluable, bang up-to-date and full of dry wit”.
I can think of no better way of describing one of its authors, Rhodri Walters, and I wish him well in his retirement.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, on behalf of the Liberal Democrats I wish to associate myself with the words of the Leader of the House and of the Leader of the Opposition in thanking Rhodri Walters for his long and distinguished service to the House, not just as Reading Clerk but in the many offices that he held in the House.
As the Leader of the House said, we have all become very familiar with Rhodri Walters reading out the Letters Patent. After a bit of research, I discovered that I was possibly the first Life Peer whose Letters Patent he read out when I was introduced in November 2007. I once asked him whether he could do that blindfolded after all the times he had done it. He replied that he probably could but would never dare try.
We should also recognise the many different roles that the Reading Clerk plays. One of Rhodri’s roles was as Clerk of the Overseas Office, where he helped the first two Lord Speakers build their roles as the House’s ambassadors overseas. He also helped the House to deepen its ties with Commonwealth Parliaments and to forge new links elsewhere, most notably with Russia, having organised a very successful visit to Westminster of the President of the Federation Council of the Russian Federation.
Rhodri Walters was also instrumental in the House’s engagement with Parliaments of European Union member states, culminating in organising a very successful meeting of the Association of European Senates last year, when this House played host to the Speakers of 15 European upper Chambers.
Reference has also been made to Rhodri’s recreation. I am told by a former member of his staff—it is right to say that those who worked for him held him in highest regard—that he was able to jump, both feet together, from a floor on to a table. For the past six and a half years, his feet were very firmly under the table except when he was standing up reading. For his loyal service we are very grateful and we wish him well in his retirement.
Lord Laming (CB)
My Lords, on behalf of my colleagues in the Cross-Bench group I associate myself with the warm and very well deserved tributes already paid to Rhodri Walters. Throughout his career Rhodri displayed a quite remarkable understanding and knowledge of Parliament. Among his many responsibilities he was the clerk to a number of Select Committees. They were far too many to record but I mention just two of what might be called rather controversial Bills. The first became the Constitutional Reform Act, which, among other things, created the role of the Lord Speaker. The second, and more recent, was the Joint Committee on the draft House of Lords Reform Bill. Neither task could possibly be described as being straightforward. The House liked to give Rhodri a real challenge.
Rhodri was a real professional in all that he did, and one who was solidly committed to the service of this House. He can be rightly proud of what he achieved. He takes with him our warmest good wishes and our warm and sincere thanks.
The Lord Bishop of Chester
My Lords, I want to associate these Benches with all the remarks made so far. I think that Rhodri Walters introduced more than 200 Members into the House, including the rare distinction of introducing the Archbishop of Canterbury twice—first as Bishop of Durham and then as Archbishop of Canterbury. He may have been able to deal with the Letters Patent in his sleep, except that when a Bishop comes along he is liable to trip up the Reading Clerk as it is a different form of words.
Perfectionist that Rhodri was, three or four weeks ago, when the first of the current flood of new Bishops arrived, he said to me, with a fallen face, “I don’t think I have got it quite right”. I do not think that anyone else had noticed anything other than perfection because he was a perfectionist—a perfectionist in the parliamentary choir and in every aspect of his life. There was always a particular resonance between the Bishops and Rhodri because he is used to looking after bishops as he is a church warden of one of the parishes here in London. As a good church warden, he forgave us our sins when we did not do exactly as we were told.
Scottish Independence: Faslane
(10 years, 8 months ago)
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Lord Forsyth of Drumlean
To ask Her Majesty’s Government what is their best estimate of the cost of moving the United Kingdom’s nuclear deterrent from Faslane if Scotland votes for independence.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, we are confident that the Scottish people will vote to remain part of the United Kingdom. Therefore, we are not making any contingency plans for a yes vote. Moving the deterrent and its facilities would be an enormous exercise. Faslane is the largest employment site in Scotland, with around 6,700 military and civilian jobs, increasing to around 8,200 by 2022, with hundreds of millions of pounds of planned investments as it becomes the home to all Royal Navy submarines.
Lord Forsyth of Drumlean (Con)
My Lords, why are the Government prepared to anticipate what the effects of Scottish independence will be on the currency but not on our national security and our defence policy, given the threat that this represents to the independent nuclear deterrent? Is not the truth of the matter that, if Alex Salmond achieves his nuclear-free Scotland, the practical consequences will mean the end of the British nuclear deterrent at a time of great economic and geopolitical uncertainty? Do the Government have a plan B?
Lord Astor of Hever
My Lords, we do not want Scotland to leave the United Kingdom. We have achieved so much together and are very proud of the contributions that Scotland makes to United Kingdom defence. The United Kingdom’s integrated approach to defence protects all parts of the UK. Our nuclear deterrent is the ultimate safeguard for our national security. We have made a clear commitment to maintain that. There is absolutely no question that the UK will unilaterally disarm.
Lord Wigley (PC)
My Lords, while he and I might disagree with regards to the outcome of the referendum and even with regards to nuclear weapons, does the Minister not realise that the attitude that he has shown on behalf of the Government could well go down as arrogance by the Government towards Scotland? Also, does he not feel that the rest of the United Kingdom are entitled to have an answer to this question, as it is a matter that is relevant to us all?
Lord Astor of Hever
My Lords, I absolutely was not being arrogant. I began my response by saying that we do not want Scotland to leave the United Kingdom. We have achieved so much together. In the Ministry of Defence we are very proud of the contribution that the Scots and Scotland have made to defence in the United Kingdom.
Lord Boyce (CB)
My Lords, will the Minister agree that if it becomes necessary to remove the independent nuclear deterrent from Faslane, we must also take into consideration the fact that we must move the other nuclear attack submarines? That must also be counted in the cost.
Lord Astor of Hever
My Lords, the noble and gallant Lord makes a very good point and we are well aware of that.
Lord Palmer of Childs Hill (LD)
My Lords, my honourable friend the Chief Secretary to the Treasury, Danny Alexander, said in July of last year that,
“the Trident alternatives review shows that there are credible and viable alternatives to the United Kingdom’s current approach to nuclear deterrence”.—[Official Report, Commons, 17/7/13; col. 1219.]
Can my noble friend, despite his earlier words, say how much could be saved if these viable alternatives had to be used if there were, sadly, a move from Scotland?
Lord Astor of Hever
My Lords, I am sorry to disappoint my noble friend but I do not have any costs on the alternatives with me. I will check on them and write to my noble friend.
Lord West of Spithead (Lab)
My Lords, it seems that it is a dereliction of duty not to be looking at alternatives on such an important issue. We all know that our ability to defend our islands, should Scotland separate, will be dramatically reduced. Whatever happens, should they separate, there will be huge costs for our defence budget. Does the Minister agree that the real special relationship with the United States is the nuclear and intelligence relationship? Even this speculation is damaging that. Does he agree that in a nuclear alliance—the NATO alliance—our withdrawing part of the NATO deterrent, effectively unilaterally, will be something that causes huge damage?
Lord Astor of Hever
My Lords, the United Kingdom Government are not planning for Scottish independence and cannot pre-negotiate the details of independence ahead of the referendum. To start planning now for a United Kingdom without Scotland would be to start to unpick the fabric of the UK before people in Scotland have had their say and would require UK Ministers to prioritise the interests of one part of the United Kingdom over those of others. In the event of a vote to leave the UK, the referendum would mark the beginning of a lengthy and complex set of negotiations between the Scottish and UK Governments.
Lord Selkirk of Douglas (Con)
My Lords, will the Minister accept that there is no evidence that the majority of the Scottish electorate want to see the disintegration of the British armed services and neither do they wish to see the extra costs that would certainly go with it?
Lord Astor of Hever
My Lords, I agree with every word that my noble friend says.
Lord Rosser (Lab)
My Lords, we want to see Scotland remain a key player in the United Kingdom, to the mutual benefit of each country within it. Defence is a vital component of the United Kingdom. Can the Minister say what the size is of the UK defence footprint in Scotland?
Lord Astor of Hever
My Lords, the Ministry of Defence spent over £20 billion with UK industry in 2011-12. It would be for the Scottish Government to explain clearly what their armed forces would look like. However, to date, they have failed to provide sufficient clarity. At some £34 billion, the UK’s annual defence budget is one of the largest in the world. As part of the UK, Scotland benefits from the full range of the UK’s defence capabilities that its budget provides.
Lord Desai (Lab)
My Lords, would it be charitable to believe that the Government, as a responsible agency, may have scenarios up their sleeve but the noble Lord is not willing to take the House into his confidence?
Lord Astor of Hever
My Lords, even if I did know that I could not possibly tell him about it.
Lord Trefgarne (Con)
My Lords, is there not a major defence manufacturing activity in Scotland, much of which may well be lost if Scotland chooses to become independent?
Lord Astor of Hever
My noble friend makes a very good point. The Ministry of Defence spent more than £20 billion with UK industry in 2011-12, with a £160 billion, 10-year equipment programme. Companies based in an independent Scotland would no longer be eligible for contracts that the UK chose to place domestically for national security reasons. Where they could continue to compete, they would be pitching for business in an international market dominated by major economic powers.
Lord Foulkes of Cumnock (Lab)
My Lords, does the Minister not understand that this is an important matter, and that there is a big difference between pre-negotiation and contingency planning?
Lord Astor of Hever
My Lords, I cannot add anything to what I have already said.
School Pupils: English Speakers
(10 years, 8 months ago)
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Baroness Sharples
To ask Her Majesty’s Government what is their estimate of the number of children starting school for whom English is a second language.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, the latest school census in England in January of last year showed that 19% of pupils in year one, 113,000, and 14% of pupils in year seven, 75,000, have English as an additional language. More than 1 million pupils in schools, 13% of the total, have English as an additional language.
Baroness Sharples (Con)
Is my noble friend aware that certain schools are involved in considerable expense because they have to employ interpreters? What is being done to help parents learn English, so that it can be spoken at home?
Lord Nash
My Lords, it is for schools to determine how to respond to the needs of pupils with EAL, including how they support pupils’ families. We do not hold centrally a figure for the number of interpreters employed in schools. Local authorities have the freedom to allocate EAL funding to schools as they see fit. Schools may well choose to spend this on interpreters or on employing bilingual staff. For example, we know that in 75 local authorities, primary school pupils with EAL attract between £250 and £750 each. The Government are investing £210 million per annum in community learning language programmes to support families with EAL. We are also funding English courses for 24,000 adults with the lowest levels of English through the £6 million English language competition. There is no specific duty for schools to teach English to parents; however, schools have a key role to play in this. Parents of new pupils at, for instance, Millbank Academy—one of the primaries up the road, which is in my wife’s group—where 85% of pupils have EAL, are introduced both to other parents and a member of staff who speaks their home language, and are invited to the school every week to be updated on their pupil’s progress.
Baroness Coussins (CB)
My Lords, a recent British Academy report highlighted the importance of the diverse languages of the UK’s minority communities for our diplomacy, national security and defence needs. Will the Minister therefore acknowledge the data, which suggest that the presence in schools of children who are bilingual or have English as an additional language tends, in fact, to raise overall school performance at GCSE, not damage it? What action will the Government take to recognise and improve these language skills for the benefit of the whole country?
Lord Nash
The noble Baroness is quite right. In fact, pupils with EAL progress very well and have higher EBacc scores. Indeed, sadly, it is many white, working-class British boys with English as a first language who do particularly badly. We recognise the importance of language skills, which is why we have introduced them as a compulsory measure into primary schools. Under this Government, the number of pupils doing languages at secondary school has risen substantially.
Baroness Hussein-Ece (LD)
My Lords, my noble friend will be aware that many children who begin school with little or no English go on to become successful students and have a very positive work ethic that they contribute to the school. But is he aware that there are successful schemes in some authorities whereby bilingual students are trained to provide additional support to young people and their parents who do not have English as a first language to adapt quickly to school life and to the English way of life?
Baroness Jones of Whitchurch (Lab)
My Lords, will the Minister join me in celebrating the role that teaching assistants can play in helping these particular children integrate quickly, particularly if the teaching assistants are drawn from the local community and share the child’s first language as well? Will he reassure all those hard-working teaching assistants around the country that the Government do not have any plans to phase them out?
Lord Nash
The noble Baroness is quite right that teaching assistants can play a vital role, particularly in this area. As we have discussed, the use of teaching assistants can sometimes not be done well—but, properly used, they are vital. We believe that it is for the head teachers to decide how they employ teaching assistants. It is entirely a matter for them.
Lord Brooke of Alverthorpe (Lab)
The House will be grateful to the noble Lord the Minister for the statistics that he has given us. More importantly, what is the estimate of the number of children who are now going to school who cannot eat properly, have not been toilet trained properly and cannot cope with healthy foods by comparison with what they are accustomed to eating? What are the Government doing to help parents to train those children to make sure that they have a better standard and to stop the closure of the Sure Start centres, which were aimed at trying to prevent that difficulty?
Lord Nash
The noble Lord is quite right that we unfortunately see an increasing number of pupils entering primary school with very challenging social skills. Primary teachers and assistants have to spend several terms socialising them. Meals are very important, which is why we have introduced compulsory meals. On early years training, in fact we have invested substantially in early years and continue to support childminding.
The Earl of Listowel (CB)
Does the Question not highlight the additional challenges that certain teachers and schools have? Will the Minister assure the House that in the inspection and evaluation of schools, full appreciation of the job that teachers do and the distance that each child travels, as well as their achievement in academic league tables, are taken into account to stop demoralising teachers who work in particularly challenging areas and do a wonderful job taking children forward through their education?
Lord Nash
The noble Earl is quite right; teaching is the most noble profession and we should at all times recognise that and constantly try to raise the status of teaching in all our lives. Teachers do a wonderful job. Our new Best 8 progress measures will track the progress of all pupils of whatever ability throughout their school careers. We think that that is very important.
Baroness Farrington of Ribbleton (Lab)
Can I share with the Minister an experience that I had? A London taxi driver was talking to me about his daughter’s education? His daughter had a first class degree and had gained a job in India in IT. He said, “You see, my daughter was very fortunate. She went to a school where she was able to learn Urdu and Gujarati”. The availability of such languages in our schools should always be seen as an asset and an opportunity for English first-language pupils.
Flooding: Agricultural Areas
(10 years, 8 months ago)
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The Earl of Shrewsbury
To ask Her Majesty’s Government what measures they are taking to improve flood defences in agricultural areas.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley)
My Lords, we are spending £2.4 billion in this four-year period on national flood risk management and much of the 1.3 million hectares of agricultural land at flood risk benefits from this investment. Over the past two years, our capital investment has provided improved protection to more than 150,000 hectares of farmland and many agricultural areas also benefit from the Environment Agency’s flood defence maintenance work.
The Earl of Shrewsbury (Con)
My Lords, while I welcome the creation of the farm recovery fund to support bringing flooded land back into production, is my noble friend aware that the impact of the flooding means that the majority of crops in the current production season will be totally non-productive? This causes considerable hardship in many agricultural communities. I ask my noble friend what plans the Government have to alleviate this hardship.
Lord De Mauley
Before I answer my noble friend’s question, I remind the House that I have a farm and that I am not unfamiliar with being flooded. The £10 million farming recovery fund will help farm businesses bring flooded agricultural land back into production as quickly as possible. In addition, £10 million is available under the farming and forestry improvement scheme—part of the rural development programme—which will provide support for farm business resilience. One hundred per cent rate relief is available to flooded businesses for three months. There are also, more generally, grants of up to £5,000 for households and businesses in affected areas to improve resilience of premises to future flooding.
Baroness Symons of Vernham Dean (Lab)
My Lords, I declare an interest as my own village, Vernham Dean in rural Hampshire, has been very badly affected by the flooding. In our village, some householders have been told that although their insurance is valid if there is rising river water, it is invalid if flooding is as a result of rising water through the water table. This is preposterous on the part of insurance companies. Will the noble Lord do everything he can to ensure that insurance companies live up to their responsibilities to the people who have been paying their dues?
Lord De Mauley
First, I extend my sympathy to the residents of the noble Baroness’s village and, indeed, the many other people who have suffered as a result of flooding in the last couple of months. I suspect that the specific answer to the question she raises is that unfortunately it depends on the drafting of the specific insurance contract. However, I sympathise strongly and I assure her that we are looking very carefully at the issue of insurance—as she will know—particularly in the context of the Water Bill currently before your Lordships.
Baroness Knight of Collingtree (Con)
My Lords, has my noble friend seen reports stating that where there are trees, managing flooding control is very much easier—apparently they aid the removal of water from the surface very effectively—but that the EU encourages our farmers to cut down trees? I do not know whether this is true, but if it is has he any comment to make about it?
Lord De Mauley
My noble friend is right that trees planted in the right places can do much to help with flooding before it happens, as it were. I am not aware that the EU encourages people to cut down trees. Specifically, though, through the RDPE, the funding that we get from the common agricultural policy has been used to plant many millions of trees.
The Lord Bishop of St Albans
My Lords, the noble Lord will be only too aware of the huge contribution that British agriculture makes to food security. Could he therefore tell us what assessment Her Majesty’s Government have made concerning the risk to food security due to poorly planned flooding amelioration and prevention schemes, which are allowing considerable areas of high-grade agricultural land to be taken out of production due to flooding?
Lord De Mauley
I am grateful to the right reverend Prelate for coming to see me the other day to talk about these things. There is currently no evidence that flood events such as those experienced in 2007, 2009 or 2012—or, so far, in recent events—represent a threat to food security in the United Kingdom. According to the UK food security assessment, the UK enjoys a high level of food security as a developed, stable economy. I think it is more likely that disruption to transport links could impact access to food supplies, but we are watching this carefully.
Lord Clark of Windermere (Lab)
My Lords, can the Minister advise the House whether any money is available from the European Union to offset these costs on the British Government? If so, have the Government drawn down any of that money?
Lord De Mauley
I think that the noble Lord might be referring to the EU solidarity fund, which is designed to support recovery if a country is in an area that has been affected by a major natural disaster. The UK applied to the fund once before in 2007 when flooding affected over 48,000 households and 7,000 businesses. The threshold for a national disaster is still €3 billion, in 2002 prices. Recent events, although locally severe and certainly very traumatic for local residents, cannot be compared in terms of impacts or categorised as a major natural disaster. However, we will keep the matter under review.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, in a Somerset village completely cut off by water, a woman who normally works 45 to 50 hours per week to support her family is having to rely on a boat to get in and out. She is therefore not able to work nights and her working week has been reduced to 20 hours. Her income has dropped dramatically and she is now in rent arrears. Her house, however, is on high ground and well above the flood-water. Can the Minister assure us that this woman and others like her will be able to gain access to the grants announced by the Government?
Lord De Mauley
My Lords, as my noble friend knows, we have huge sympathy for those who have been affected and we are doing what we can to help. In my supplementary answer to my noble friend Lord Shrewsbury, I outlined a number of the schemes that are available. I suspect that I am going to need a bit more information about this specific case, and if my noble friend would like to get in touch we will see what we can do to help.
Lord Campbell-Savours (Lab)
My Lords, is there not an argument for turning agricultural land that floods into reservoirs, thereby providing upstream storage of water which would help alleviate flooding problems, particularly in the Thames Valley?
Lord De Mauley
My Lords, we are looking at a number of possible ways in which we can do this. The noble Lord will know that these things are not simple. I will have to ask him to have some patience while we look at the various options.
Education: Vocational Education
(10 years, 8 months ago)
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Baroness Neville-Rolfe
To ask Her Majesty’s Government what assessment they have made of the approach taken by Germany and Austria in promoting vocational education; and what lessons they have drawn for the United Kingdom and UK competitiveness.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, in Germany and Austria, vocational education is of high quality and closely involves all local employers, which in Germany is sometimes on a compulsory basis. Of course there are differences between our countries, but there is much we can learn from them. This has informed our reforms of vocational education and Professor Alison Wolf’s review. By introducing the tech bacc and tech levels, reforming apprenticeships and through our UTCs and studio schools, we are expanding high-quality technical education while at the same time ensuring that industry is involved at every step of the way.
Baroness Neville-Rolfe (Con)
My Lords, I thank the Minister for that welcome news. We all valued the visit of Chancellor Merkel to Parliament last Thursday, during which she spoke of competitiveness. The German education system does a better job for the nation’s economy and for the less academic partly by ability streaming in schools with the possibility of switching between streams. This provides better educational outcomes and a larger, better pool of talent that can be apprenticed to German business, which is very actively involved. Can we improve our PISA scores and our business performance by doing the same in our schools?
Lord Nash
My noble friend is quite right that the PISA results were a stark wake-up call for all of us about the need to improve our education system across the board in order to compete internationally. In comparison with Germany, we do particularly badly on maths and science. To achieve improvements, we are continuing to introduce a whole suite of reforms, as noble Lords know. As for streaming, we believe that all pupils need a core body of knowledge and indeed I understand that Germany is now extending the period during which their pupils have this. However, there is much that we can learn from Germany. Our UTCs and studio schools, of which we have now approved almost 100, are modelled closely on the success of German technical schools, as are our higher apprenticeships.
Lord Bilimoria (CB)
My Lords, the Minister mentioned studio schools in both his responses. I have recently been appointed a patron of studio schools. Since they were first started in 2010, how many schools have opened and what progress has there been on this excellent initiative that encourages employability skills and a more hands on approach? The CBI says that employers want employability skills. Will the Government be funding more studio schools?
Lord Nash
I am delighted to hear of the noble Lord’s involvement in studio schools. It is fantastic for someone with his experience to be giving back in this way. There are 46 studio schools, 28 of which are open with a further 18 in pre-opening phase. More than 400 employers are involved in studio schools. We welcome all high-quality applications for studio schools.
Baroness Wall of New Barnet (Lab)
My Lords, I congratulate the noble Baroness on the points that she made, with which I agree totally. Could we not emulate Germany in another way by recognising vocational qualifications such as apprenticeships? Apprenticeships are celebrated in Germany very much like graduate degrees are celebrated in this country. For instance, engineers who have come up through an apprenticeship route are held in much esteem, much more than they are in this country. What can we do to make sure that we emulate that?
Lord Nash
The noble Baroness is quite right. The first thing we can do is to reform the standard of our previously existing vocational qualifications, which were nowhere near good enough, with far too many that were not doing our pupils any favours. However, for the first time we now have a high and equal status pathway for pupils through the tech bacc.
Lord Baker of Dorking (Con)
My Lords, is the Minister aware that in Germany 60% of school children enjoy some form of technical education? The figure in Britain is 15%, and that is one of the reasons why at the moment Angela is the rooster in the walk. Will he ensure that the expansion of UTCs continues? We have 50. There should really be 100 as these colleges are the only colleges that produce employable engineers and technicians and so far none of their students has joined the ranks of the unemployed.
Baroness Morgan of Ely (Lab)
My Lords, many further education colleges encourage young people who have already attained five GCSEs at school effectively to resit vocational courses at the same level as GCSEs—level 2—rather than pushing these students to a level 3 —A-level standard—qualification. What steps are the Government taking to give incentives to colleges to push students to progress and to deliver quicker and better the vocational skills that our economy desperately needs?
Baroness Sharp of Guildford (LD)
My Lords, does my noble friend agree that high-quality careers education and properly trained careers advisers are necessary so that young people in schools know the full range of opportunities available to them from vocational education?
Lord Nash
I agree that they are extremely helpful, but my noble friend will have heard me say before that the technology has moved on from the careers adviser being the gold standard. The gold standard must be the active involvement of all schools with business so that all their pupils have a clear, direct line of sight to the workplace.
Lord Flight (Con)
My Lords, have the Government looked at the Swiss model of higher education? Of the order of only 20% of young people attend universities, which are essentially academic, but virtually everybody else gets seven years of sandwich training. Moreover, Switzerland is assessed to have the highest general level of education for its citizens in the world.
Lord Nash
I am aware that the Swiss have a very successful education model. We have studied models around the world and happen to have taken note of this, although Switzerland is a specific country. I shall look at this in more detail and would welcome a discussion with my noble friend about it.
House of Lords Reform (No. 2) Bill
Immigration Bill
(10 years, 8 months ago)
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Lord Taylor of Holbeach
That it be an instruction to the Committee of the Whole House to which the Immigration Bill has been committed that they consider the Bill in the following order:
Clauses 1 and 2, Schedule 1, Clauses 3 to 8, Schedule 2, Clauses 9 to 15, Schedule 3, Clauses 16 to 47, Schedule 4, Clauses 48 and 49, Schedule 5, Clauses 50 to 54, Schedule 6, Clauses 55 to 58, Schedule 7, Clauses 59 to 61, Schedule 8, Clauses 62 to 66, Schedule 9, Clauses 67 to 70.
Immigration Bill
(10 years, 8 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, in moving Amendment 1, I shall speak also to Amendment 4. The group includes Amendments 2, 5, 6, 7 and 8 as well. This is a point at which I feel I should be instigating some sort of cabaret to retain your Lordships. Maybe a tea dance would be more appropriate for this company; I do not know.
Clause 1 provides for a new section to go into the 1999 Immigration and Asylum Act for the removal of persons unlawfully in the United Kingdom. It replaces the current Section 10 of that Act, which is headed, “Removal of certain persons”. That change is significant, and the new section would certainly give rather broader powers. Amendment 1, my first amendment, would require the Secretary of State to give notice of the removal, which should be in writing and give the date and time of the removal. At this stage, at any rate, I have referred to this as the “approximate” time in order to anticipate, and therefore not waste time on, an argument that a plane might be delayed. Talking about time without qualifying it was therefore inappropriate—that is not of course the point of this.
Amendment 4 is about notice to a family member, which new Section 10(6)(c) in effect makes optional. New Section 10 gives powers to remove the individual and family members who are not defined. None of the amendments in this group is about not removing persons who are unlawfully here, which is a different argument, but about who is to be removed and how. The Delegated Powers and Regulatory Reform Committee has expressed concerns about the provisions not being in the Bill. We have of course already seen draft regulations. They are in the pack that my noble friend has arranged for noble Lords to see, which contains a whole group of statements of intent, regulations, codes, statements of fact and so on. I thank him for that. I forgot to take it home with me on Friday but I read it, or the right bits, before tabling these amendments.
The Delegated Powers Committee found it,
“difficult to understand why operational experience should have any effect on who is to be treated as a family member”,
and recommended that the definition in the draft regulations be placed in the Bill. That seems to be an appropriate provision. Draft Regulation 4 requires notice to be given to a family member facing removal, which reflects what is currently in the 1999 Act, but the Bill provides only that regulations “may” provide for that notice. I hope that the Minister can explain to the Committee why this should not be a requirement. It seems an absolutely fundamental point and other noble Lords will have seen briefing to the effect that it has been made by the judiciary as well.
There is also a draft regulation providing that the giving of notice invalidates any leave to enter or remain, in the case of the family member previously held, that is currently in Section 10(8). Again, why should safeguards currently in primary legislation not be included in the Bill?
There are always provisions about service of notices in the draft regulations, although I do not know whether they are usual. It may not be a point for debate in Committee today but I could not help noticing that the draft regulations provide for recorded delivery of the notice that requires signing for, but there is deemed service. There must be a risk, for instance, that someone else in the house will sign for receipt of notice of something that is crucial to the person who may not actually receive it. There are deemed service provisions elsewhere in the regulations.
Less technically perhaps, there are directions for removal ceasing to have effect if the family member ceases to belong to the family. Again, that is a current provision and it would be absolutely appropriate for it to be in the legislation. In the Commons Committee, the Minister gave a number of assurances. Of course I accept them, but Governments change, as sometimes do regulations as well.
I cannot recall if the sword of Damocles fell at the end of the tale, but I am concerned about how long it may hang—perhaps for a very long time—and whether it may hang at all over a family member who has a right to leave, enter or remain in the country in his or her own right. This group extends further than these two amendments. Although we may appear to be starting the Bill almost half way through the journey—in the philosophical as well as the practical sense—that someone seeking to enter or remain in our country will make, these are very important issues. I beg to move.
Baroness O'Loan (CB)
My Lords, I wish to speak to Amendments 5, 6 and 7 in my name, and in that of the noble Baroness, Lady Lister. I speak as a member of the Joint Committee on Human Rights. These amendments were recommended in the eighth report of that committee on the legislative scrutiny of this Bill. Following the Government’s response to the committee, it produced a further legislative scrutiny report and again recommended these amendments.
The intention in Clause 1 is very simple: to simplify processes for removing people who are in the United Kingdom unlawfully and provide for removal of members of the person’s family, which provides a new Section 10 to the Immigration and Asylum Act 1999. The question of which member of an individual’s family can be removed following the removal or planned removal of an individual is to be decided in accordance with a number of policies. For example, a family member who has been a victim of domestic violence in accordance with the definition in the Immigration Rules will not be removed. Similarly, a member who is no longer in a family relationship will not be removed. There will undoubtedly be debate in your Lordships’ House about who can and cannot be removed under these provisions. Of course, the Government have stated that removals will be in accordance with existing immigration law and our international obligations.
The Archbishop of York
My Lords, there are some very welcome amendments to this Bill, and I will speak shortly to Amendments 1 and 4.
As someone who owes his life to a country that was willing to provide sanctuary at a time of extreme danger, as my wife and I secretly left President Idi Amin’s regime in Uganda, I feel strongly about these matters. This is not to say that I do not recognise the need for proper border control. States have the right to guard their citizens from any real negative impact—social or economic—of excessive immigration. Nevertheless, Amendments 1 and 4 are actually very helpful in a number of ways.
First, I apologise that I was not in the House for the Second Reading on 10 February, but I was pleased to see the comments of the noble Lord, Lord Taylor, that day. He said:
“The Bill does not undermine individual rights; rather, it strengthens them. The arbitrariness of whether the family life threshold has been met is replaced by clarity and consistency”.
He went on to say:
“It streamlines the process of removing illegal migrants while protecting the vulnerable. … Families being removed will continue to benefit from the coalition’s commitment to end child detention. … We will protect the vulnerable”.—[Official Report, 10/2/14; cols. 416-18.]
However, undue haste is rarely in the interests of fairness, especially when people are disorientated, confused and fearful. While I can see the merits of bringing the decisions together, giving people only 72 hours to access the legal support and advice necessary to make an appeal is not helpful. What if someone is unwell or on holiday? I can hear those responsible having no answer to make other than, “'Tough luck”. It is only fair that if a person is to be removed they be given adequate notice. The amendment in the name of the noble Lord, Lord Avebury, would have it that the date of removal was given at that point. This is perhaps better than receiving a letter simply saying that you are liable to removal, although either makes it clear that preparations must be made, which is better all round. Of course, some will say that giving notice gives the opportunity to abscond, but, on balance, it is more humane to give notice. The determination is there for those who are regarded as at risk of absconding: they can be detained.
Amendment 4 is another vital amendment that is consistent with the earlier amendment. It would remove the possibility that a family member being removed might receive no notice. It seems to me that, if they did not receive notice, in a society like this that would be not good. I therefore support Amendments 1 and 4.
Lord Ramsbotham (CB)
My Lords, I shall speak particularly to Amendments 1 and 2 but also to Amendments 4, 5, 6, 7 and 8, as I shall explain.
At Second Reading, I explained to the House that the whole business of enforced removals was by no means new as far as examination from outside was concerned. Indeed, in 2008, I handed the Home Secretary a document called Outsourcing Abuse, which referred to 78 cases where injuries or death had been inflicted on people who were being removed forcibly from this country. I was then a commissioner on the Independent Asylum Commission, which made some far-reaching recommendations about the whole process. In December 2012, I handed the Home Secretary the report of a commission on enforced removals, which made another series of recommendations relating to the Home Affairs Committee report published earlier that year.
Although Part 1 of the Bill has the sub-heading “Removal Directions”, what is lacking from the whole enforced removal process is overall direction. I was very grateful to the Minister, who was accompanied by the noble Earl, Lord Attlee, for meeting me last week with the Bill team, when I gave him what we had in effect drawn up in December 2012, which was a draft code of practice laying down precisely what should be done in the Home Office as well as by the contractors who are responsible for the removal. The draft also provided for oversight of the whole process, which is sadly lacking at the moment. I was grateful to the Minister for saying that he would take away the document and study it, having referred it to the Minister for Immigration, because it is further reaching in the whole enforced removals process than the content of the Bill. Therefore, I did not table it as an amendment.
However, I should like to inform the House about the content of that document, which is really three codes of practice. The first is all about the actual conduct and the preparation of the case. It refers to duties of the Home Office, which we suggested should establish a complex returns panel to deal with single returnees who refuse either a voluntary or an assisted return in the same way that the Independent Family Returns Panel deals with families. I am very glad that Amendments 4, 5, 6 and 7 deal particularly with the families, and the Independent Family Returns Panel has been a qualified success ever since it was appointed. However, I do not think that that is good enough for the whole process, because the vast majority of people taken back are single people, some of whom have very complex cases indeed.
The document also refers to a group of people who have suffered from totally inadequate supervision and direction for years: the case owners in the Home Office. Frankly, I reckon they are both inefficient and incompetent. I do not reckon that they have ever truthfully told Ministers exactly what has gone on. That has meant that Ministers have not been in possession of the facts. Therefore, we put in the code of practice a lot of things that must be done to oversee the case owners and make certain that they are competent to carry out their task, including having a detailed understanding of immigration law.
Then we come to staff in the immigration detention centre, because that is where the returnee is based. Frequently, the detention centre staff know quite a lot about the person being returned which is not passed on to the case owner and is therefore never taken into account. That causes some of the problems in returns. We believe that immigration detention centre staff must be brought into the process.
Finally come the contractors—the people who provide the detention custody officers taking the person back. Again, this is a sadly neglected part of oversight at present. The contractors have behaved appallingly badly, in public and in front of the Chief Inspector of Prisons when he was accompanying a flight. That they are prepared to do that in front of him suggests that for years they have got away with—literally—murder. It is time that that was stopped. We suggest what must happen to them.
The next part of the thing is oversight. We believe that the Home Office must establish a clearer description and direction of oversight. It has the ideal person to do that in the Independent Chief Inspector of Borders and Immigration. I have met the chief inspector on a number of occasions and know that he is very keen to improve on what he has done already. The difference he has made since he was appointed in 2007 is enormously marked, as I note from when I was Chief Inspector of Prisons and responsible for doing detention centres. If he is given oversight over the process, particularly the practicalities of it, Ministers will find that a lot of the problems that currently appear and are listed under their names will disappear because somebody is responsible and accountable for making certain that those problems do not arise.
I will not speak to the final part of the code of practice at this moment because it refers to the use of restraint, which comes under Clause 2 and Schedule 1. However, my purpose in all this is that underlying everything that has gone on for far too long in the whole conduct of immigration has been what we described in the Independent Asylum Commission as a “culture of disbelief”. It is time that that was eliminated. I find very worrying at the moment that, although the UK Border Agency has been eliminated, I do not detect in the Home Office the leadership of the three silos that have been appointed to take over those jobs. The intentions of this Bill will be achieved only with leadership and drive of the whole process, starting with a determined attack on the 500,000 backlog—it will be defeated only by a determined attack.
Baroness Lister of Burtersett (Lab)
My Lords, I hesitate to follow such a powerful speech and will speak only briefly because important points have already been raised about the amendments. Briefly, I support Amendments 5, 6 and 7, tabled by the noble Baroness, Lady O’Loan, on behalf of the Joint Committee on Human Rights. As she pointed out, in their response to our eighth report—our first legislative scrutiny report on this Bill—the Government said that they would give consideration to the amendments suggested by the JCHR. That is about as good as it gets: the Government will give consideration. They gave away very little indeed in response to our report. We were optimistic that at least something would have happened on this, but nothing has happened. The case has been made as to why it is so important that this provision is placed in the Bill itself. It is not sufficient for it simply to be in regulations or for there to be the very welcome ministerial assurance. It should be in the Bill.
I simply ask the Minister whether he is still considering the case, or has he considered it and decided against it? If so, why? It seems such an eminently reasonable amendment that was proposed by the JCHR and had been supported in various ways by noble Lords.
The Earl of Listowel (CB)
My Lords, I am reminded in this debate of a conversation I had in Yarl’s Wood immigration removal centre several years ago with a mother—a black woman—who had been removed. Unfortunately, in the process of removal from her home for detention she was injured. Ten months on she was still suffering from the injury that she received. Her 16 year-old daughter—a child with a younger sister of eight years of age—spoke to me about her anger at the injury on her mother and her frustration at being detained for 10 months without trial.
Perhaps this is not the appropriate amendment to bring this in, for which I apologise, but listening to this discussion I commend the coalition Government for their decision early on to minimise as far as possible the detention of families prior to removal. I warmly congratulate them on taking that move.
My other point—again it is probably not the right place to ask about it—is that I am concerned about the training and development of those officers who go to homes to remove families with their children. I would be interested to know how far they have social childcare training akin to what a residential childcare social worker might have, and how far they are supervised by a child and family social worker. It might be helpful on a regular basis that they should be so.
I would be interested in the answers to that sort of question, perhaps not at this point but later in the course of the discussion.
Lord Roberts of Llandudno (LD)
My Lords, I support everything that has been said by the noble Baroness, Lady Lister, the noble Lord, Lord Ramsbotham, and the noble Earl, Lord Listowel. In particular, the words of the former Chief Inspector of Prisons must carry very serious weight in this particular discussion.
I am looking at what is happening to the outsourcing of many of these functions and thinking of the question asked by the noble Earl, Lord Listowel, just now. What are the qualifications and the development of those who are now involved in these private companies with this particular action? How do they exercise their duties?
The Minister made a statement last year concerning the call from Her Majesty’s Chief Inspector of Prisons not to use force against pregnant women. He told the House that:
“The recommendation in the report by HM Inspectorate of Prisons on Cedars pre-departure accommodation that force should never be used to effect the removal of pregnant women and children was rejected by the UK Border Agency”.—[Official Report, 10/4/13; col. WA 313.]
At the moment, the powers of forced removal—I hope I am not misinformed here—apply only to the immigration Acts of 1999 or 1971. Enlarging this and making it applicable to any immigration inquiry is a very dangerous move. I ask the Minister for his assurance on these matters.
Also, as mentioned already, the culture and the evidence we have of the methods used do not show any change. What are the Government doing to make sure that when this enforced departure has to be undertaken it is done in a humane way?
Lord Avebury (LD)
My Lords, I agree with what my noble friend has just been saying, particularly about the failure of the Home Office to deal with the serious criticisms of the case owners that were referred to earlier by the noble Lord, Lord Ramsbotham. The whole point about disbanding the UKBA and returning these functions to the control of the Home Office itself was that by common acknowledgement, including that of the Home Secretary herself, the UKBA had become dysfunctional and something had to be done. However, what has in fact been done since it was disbanded is that the case owners are not the same persons who were making decisions before and were manifestly incapable of doing the right thing, by reason of the fact that a very large number of the appeals against their decisions were upheld by the tribunal. It would be useful if we had an answer to both that question and the noble Lord’s further question about the consideration of Outsourcing Abuse, the report to which he referred, which never had the consideration that I believe it deserved in the Home Office but is crucial to the future health and efficiency of the people who are making these fundamental decisions, which affect the lives of so many people.
On these amendments, I agree with the Delegated Powers Committee that the definition of “family members” must be in the Bill and limited to those whose leave to enter or remain in the UK is expressly dependent on the principal’s leave to enter or remain. For example, a family member who came to the UK for work or study, not as the dependant of the principal, should not be included in the definition. That seems to be the effect of Regulation 3 of the draft Immigration (Removal of Family Members) Regulations 2014 but, as has been said, it should be in the Bill. As the Delegated Powers Committee found, the justification for placing both this and the time limits for removal in secondary legislation—that they may have to be amended from time to time—is not borne out by experience over many years and through a good many immigration Acts.
Draft Regulation 4 has the same effect as Section 10(1)(c) of the 1999 Act, providing that notice has to be given to any family member who is liable to removal, but the Bill provides only that notice “may” be given, as my noble friend Lady Hamwee pointed out in moving the amendment. This is partly covered by our Amendment 4, but the Minister may wish to consider placing the obligation to give notice firmly in the Bill. As ILPA makes clear in its briefing, quoting the noble and learned Lord, Lord Steyn, giving notice is vital for the legality of the decision to remove a person so as to give him the opportunity of challenging the decision before the courts. The Secretary of State’s attempt to remove certain persons without notice has been ruled unlawful by the High Court and the Court of Appeal. In short, the powers and safeguards dealing with the identification of family members who may be removed, the question of when the powers may be exercised and the notice to be given should all be in the Bill, as should the provisions of Section 10(5) of the 1999 Act, providing that removal directions should cease to have effect against a person who ceases to be a family member.
Lord Rosser (Lab)
My Lords, I will not at this stage make any comments relating to the extension of enforcement powers but will wait until we discuss Amendments 12 and 13. We are not opposed to the principle of Clause 1 but we have questions to raise. We cannot see what the problems for the Government would be in accepting Amendments 5, 6 and 7, and we await the Minister’s response with interest.
We have Amendments 2 and 8 in this group. Amendment 2 is not dissimilar to that moved by the noble Baroness, Lady Hamwee, and provides that a person should be given written notice of their liability for removal. According to the Government, there are approximately 14,000 enforced removals a year, with people being arrested, detained and then removed, and about 29,000 people depart voluntarily to a greater or lesser degree. Apparently, an enforced removal costs about £15,000.
The Immigration Act 1971 requires written notice of decisions to give, refuse or vary leave to be in the United Kingdom. Currently, migrants are told if they are not allowed to be here, and they are then told separately about their removal. Under the Bill, the Government want to be in a position to serve only one decision that gives, refuses or varies leaves and, following that decision, where notice has been given, those who do not have leave to remain will be subject to removal without a separate removal decision or notice being required. It seems that the notice giving the decision on leave to remain will tell the immigrant of their destination for removal, advise them to seek early legal advice and place them under a duty to raise any asylum, human rights or European free movement issues with the Home Office. It is not clear why this is not stated in the Bill. No doubt the Minister will explain why and indicate what else will be required to be included in this decision notice. Apparently, the decision notice will be issued at least 72 hours before any removal is attempted, which is in line with the amount of notice given currently when a removal decision notice is issued. Will the decision notice make clear the individual’s liability to removal, and will it state when, where and how that removal will take place? I look to the Minister to give a response to that question when he replies. Will the minimum 72 hours apply to family members? The draft regulations refer to,
“at any time prior to … removal”.
I hope the Minister will respond to that question. Included in the decision notice will be options for voluntary departure and the consequences of not so departing. Will the Minister say what the consequences of not departing voluntarily will be that will be set out in the notice and, once again, why that should not be in the Bill?
Since financial reasons appear in part to be behind the provisions in Clause 1, will the Minister say what the Government anticipate those savings will be and what impact the change to not having a separate removal notice will have on the number of enforced removals and on the number of people departing voluntarily? Perhaps he will also say what impact the Government expect the change to having no separate removal notice will have on the net migration figure each year, since one assumes that one key purpose of the Bill, as far as the Government are concerned, is to have an impact on that overall figure. It seems unlikely that the current system will be strengthened if the time gap between an individual receiving notice that they do not have leave to be in the United Kingdom and the time they are removed if they do not leave voluntarily is longer than under the current arrangements, under which a separate notice of removal decision is issued. Will the Minister say how long it currently takes, on average, for an attempt to be made to remove a person following a refusal to grant or vary leave being made, how long it takes following the removal decision being sent, and how long the Government intend it should take under the proposed arrangements with only one decision notice being issued in the light of the intention that a decision notice will be issued at least 72 hours before a removal is attempted?
Amendment 8 provides that the regulations that the Secretary of Sate can make about the removal of family members under Clause 1(6) should not be made unless a draft has been made before and approved by resolution of each House of Parliament. The Bill does not provide for this to be the case in respect of regulations under Clause 1(6), which would not be subject to the affirmative procedure. Clause 1(6) enables the Secretary of State to enable regulations that, in effect, define who should be considered a “family member” and the period during which they may be removed. Surely legislation should be clear about the people who are subject to the powers it contains. The Secretary of State’s definition of a family member, which could be wide-ranging, should be subject to full discussion and affirmative approval by both Houses.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, this has been a welcome start to the Bill. Although we have strayed into some of the subsequent elements in discussing this, that is inevitable because the Bill knits elements together. It is proper that we see how the provisions of Clause 1 fit into the other aspects of the Bill.
I think that we can all agree that our current system for removal is too complex. It requires a number of decisions and notices to be made and served. Separate refusal and removal decisions can cause confusion to migrants as to when they need to leave the UK and lead to legal challenges being made later in the process
I start by considering the two amendments so ably moved by my noble friend Lady Hamwee. We know that she works assiduously on these Bills, whether or not she has taken home the guidance brochure this past weekend. Amendments 1 and 2 would ensure that a person must be given written notice of their removal. Amendment 1 also mandates setting out the date and approximate time of that removal. While I understand the broad intention behind Amendment 1, this would inadvertently reintroduce a layer of complexity, which the whole purpose of the clause is to reduce.
The intention behind Clause 1 is to move to a system where only one decision is made and served, giving, refusing or varying leave. Following that decision, those who require leave but do not have it will be removable.
I can confirm to my noble friend Lady Hamwee, and indeed to other noble Lords, that such people will all receive notice of the decision in writing, in accordance with Section 4 of the Immigration Act 1971, so it is unnecessary to place an additional notice requirement within this clause. This notice will inform them of the decision on leave, of their liability to be removed if they do not depart voluntarily, and the proposed destination for any enforced removal.
It would not be feasible to provide a date or approximate time of removal in this notice. Not all those who become liable to removal will be facing an enforced removal, as we—and, I think, all noble Lords—would always prefer that those who do not have valid leave to be in the country should return home voluntarily. This allows the migrant to depart on their own terms, is more cost-effective for the taxpayer, and, if the migrant leaves without the use of taxpayer resources, they can reduce the likelihood of, and possibly avoid, a re-entry ban.
I turn to the comments of my noble friend Lady Hamwee on the deemed service of the decision. She will be well aware that “deemed service” replicates the existing notice provisions, which have been shown to work effectively and are interpreted with a degree of flexibility, such that if the person can show that they received the notice at a later date, we will accept that as the date of service. There are established procedures on the delivery of notice and, indeed, they are set out in the regulations.
All migrants will be given the opportunity to raise with the Home Office any asylum, human rights or European free movement reasons why they believe they are entitled to stay in the UK. They will be informed that they are under a duty to do so at the earliest opportunity if their circumstances change, and will be advised to seek any legal advice as early as possible.
I hope I can reassure the most reverend Primate the Archbishop of York, who I am delighted is participating in our debates today, that the common law principles of access to justice mean that migrants will be given sufficient time—a minimum of 72 hours—to raise such grounds before any removal can be enforced. They will be reminded of the fact that they may be removed from the UK if they do not depart voluntarily during any contact management events. If the migrant’s removal is enforced but they are compliant with the process, they will be informed of when to check in to the port of departure. If the migrant is not compliant, they will first be detained, where they will be informed when removal is imminent.
The noble Lord, Lord Ramsbotham, mentioned our very productive meeting. Although I cannot share his view of the hard-working people we ask to handle this difficult task on our behalf, I note what he says about oversight. I should say that quality assurance checks are part and parcel of the process. However, we recognise that there is room for further improvement. As such, we have an ongoing programme of work to continue to monitor and progress our decision quality.
Amendments 4 to 7 seek to remove the discretion in the regulations as to whether we notify family members of removal. We have already stated our intention that family members will always be given notice where they are to be removed. I hope that it pleases the noble Baroness, Lady O’Loan, and my noble friends Lady Hamwee and Lord Avebury, that it is our intention to work out how to address the recommendations of the Joint Committee on Human Rights on Clause 1. We will amend the Bill on this subject. However, I remind noble Lords that it was only on 21 February that we received the report of the Delegated Powers and Regulatory Reform Committee, making some similar recommendations. We are working out how to address both issues on Report. I hope I will return on Report. I reiterate that we will amend the Bill to meet the issues raised by these reports.
I now turn to Amendment 8. I appreciate the concerns raised by the noble Lord, Lord Rosser, about the processes surrounding the removal of family members which have led to his tabling this amendment. At the risk of jumping ahead of ourselves, Clause 67 sets out the proposed parliamentary procedures in respect of various order and decision-making powers provided for in the Bill. It already specifies that any power to make an order or regulations is exercisable by statutory instrument and that, for this particular power, it is under the normal process of negative rather than affirmative procedure. The draft affirmative procedure is normally reserved for those orders or regulations that amend or repeal primary legislation, or develop policy in a way to require significant parliamentary debate, or where the intention behind the power to make them is not clearly set out in the Bill. This Bill is clear on the intent of the regulations. The scope for a Government to construct anything that would require significant debate in a statutory instrument deriving from it is limited.
The existing removal powers that are in force allow the removal of family members. Unlike in deportation cases, there is currently no statutory definition of what constitutes a family member. That is a matter left to the Home Office. By defining this in regulations—noble Lords have referred to the draft regulations that have appeared in the memorandum that has been circulated—the Bill will give new clarity to families so that they will know exactly who may be liable to removal. It will also provide further parliamentary oversight that has until now been absent. Following scrutiny of this clause in the House of Commons, and at the request of the right honourable Member Mr David Hanson, my honourable friend Mark Harper, the former Immigration Minister, arranged for a draft of these regulations to be published and a copy is placed in the Libraries of both Houses.
Lord Rosser
Perhaps I might ask the Minister a question. The Delegated Powers and Regulatory Reform Committee referred to the Government’s argument that these matters are best placed in regulations because the definition of “family member” or the time limits for removal may change within a limited extent. It commented that this purported justification is undermined by no such change having been needed over a period of very many years during which there have been numerous immigration Acts and a litany of immigration rules changes. Since the Delegated Powers and Regulatory Reform Committee, subject to what the Minister may say, appears to have shot the Government’s arguments to bits, why is the Minister still resisting ensuring that this is done by the affirmative process?
Lord Taylor of Holbeach
I think that I have made it clear that the affirmative process is used where there is an opportunity for the Government, in effect, to change policy through a statutory instrument, which then gives rise to a reasonable demand by Parliament for the opportunity to debate the measure. As I have said, we are going to bring forward more explicit changes to the Bill to reflect the concerns shown by the comments of the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. It would probably be best if we waited until then to see what they say before we rush to change the procedure by which these matters have been considered in the past. It would be helpful to the House to wait until these changes are produced.
The draft regulations are designed to reflect the immigration rules. If a person can come to UK and be granted leave on the basis of a family relationship with another migrant, it is only right that such a person could be removed along with the lead person who has no leave to be in the UK. The Delegated Powers and Regulatory Reform Committee made recommendations about this clause that I am considering further. I will respond in detail on these recommendations before we consider the matter again on Report. That would be the right time, and I urge noble Lords to wait and see where these considerations lead us.
The noble Lord, Lord Rosser, asked a number of questions. If I do not cover them all now, I will certainly write to him. We will write to address his questions about the timescale of decision-making on removals and the carrying out of those decisions because I understand that this matter is of interest to a number of noble Lords. As to the impact on the number of removals, Clause 1 does not permit new categories of people to be removed; all those who can be removed under the clause can already be removed. It does not extend the powers to remove people but there is currently a more complicated set of procedures than will exist through the measures in the Bill. Clause 1 is about making removals more efficient.
Lord Rosser
Is the Minister saying that the provisions in Clause 1 about what the Government would regard as streamlining the procedure are not actually designed with the intention or hope that they will lead to more people who are not entitled to stay here and do not have leave to remain in the United Kingdom leaving the country than at present? Is that not the purpose of these changes?
Lord Taylor of Holbeach
No, the purpose of the changes is to make sure that people who are subject to removal leave voluntarily rather than through enforced removal. I am sure that the noble Lord and most noble Lords would agree with that proposal.
We will ensure that family members who have valid leave to remain in the UK in their own right will not be removed. We propose to remove only dependants of persons with no right to be in the UK. Where dependency is broken, such as when it involves a victim of domestic violence, the former dependant is expected to apply for leave to remain in their own right—and, if necessary, they will be removed if they were unsuccessful as a main applicant. We will also look at the best interests of the child in making any decision under our obligations—of which noble Lords are well aware—regarding victims of human trafficking.
This has been a helpful debate. I hope that I have been able to whet noble Lords’ appetite for a government response on this important clause before Report. I can reassure them that family members will always be notified if they are facing enforced removal. The draft regulations underscore this and make it clear how notice is to be given. In the light of those points, I hope that the noble Baroness will agree to withdraw the amendment.
The Archbishop of York
I still have not understood the Minister’s logic. I appreciate and want to commend the removal of the two-stage approach—the fast-forward immigration decision and then the removal decision. That has caused difficulty to a lot of people whom I have been representing and the Secretary of State knows that because we have had wonderful conversations. Therefore, I applaud that. But if there are 72 hours in which you can appeal the decision, what is the problem of giving notice in writing of the date and approximate time of the removal? People could still appeal within 72 hours. Why not state that? I cannot understand the logic. Can the Minister please help me?
Lord Taylor of Holbeach
The purpose of the notice is not to put people under notice as to the exact timing of when they will go. It is intended that they should be informed of where they will be removed to because that might have a bearing on human rights considerations. But the actual timing of their removal is an administrative matter. To my mind, it would be a complication that might reduce the effectiveness of these measures if the actual timing of their removal also had to be part and parcel of that notice.
If experience shows that it is possible to be more precise in working this new arrangement, I have little doubt that we will come back to the House to seek ways in which that can be done. But for the time being, it is expecting too much to be able to be precise about the actual time and date of a person’s removal when serving this notice.
The Archbishop of York
Is the Minister quite sure about that in the light of what the noble Lord, Lord Ramsbotham, said about the way that this thing will work—that it will not be very efficient and that people will not be very good at it? Now the Minister is saying that there will be an administrative decision by the Secretary of State. How can we be certain that the kind of problems that the noble Lord, Lord Ramsbotham, drew our attention to, which are real experiences that everyone knows about, will not affect the changes we are looking for?
Lord Taylor of Holbeach
I can be certain that when people get a decision about the refusal of their right to remain they will be removed if they do not make arrangements to go voluntarily. That is a step forward. I hope noble Lords will appreciate that much of what the Government are trying to do, including bringing Border Agency activities into the Home Office, is designed to make sure that as we develop better oversight of decision-making within the Home Office and within UKVI we will have a more efficient process in the detail that the most reverend Primate suggested.
Lord Rosser
How long will those who have been told that they no longer have leave to remain be given to make arrangements to leave voluntarily and how long will it be before a decision is made that they are not going to leave voluntarily and that enforced removal is required?
Lord Taylor of Holbeach
It will be for them to make arrangements with UKVI on the basis of the notice that they have been given. We are not looking for enforcement as being the primary objective of the policy. I think the noble Lord would agree that voluntary departures are what we would prefer to see happen.
Lord Ramsbotham
Following what the most reverend Primate said, perhaps I may say how pleased I was to hear the use of the word “better” just now in terms of oversight. I ask the Minister to accept that, hard- working though they may be, case workers have not been very good at their task and neither has there been oversight. If they had been and there had been oversight there would not have been this endless history of problems and complaints for years and years, which have been ignored. The time has come for that ignoring to stop. Therefore, I am relieved to hear mention of better oversight.
Baroness Hamwee
My Lords, the critique of what happens in practice from someone experienced as an inspector has clearly resonated around the House. We have already talked during the passage of the Bill—and I am sure we will talk again—about the importance of practice. Whatever is on paper, whether in the Bill or in regulations, is a precaution against bad practice, but it is the good practice that is important. Given the Minister’s assurances about coming back at the next stage, more formally we hope, with responses in the form of amendments to the comments of two committees, it would obviously be inappropriate for me to spend very long at this stage responding to the points that have been made. However, I will say that, like others, I read between the lines: three days does not seem very long in which to decide what to do about a decision that has been handed down and to make arrangements. But there we are.
The Minister suggested that my first amendment would reintroduce complexity. I was actually seeking to provide more clarity. When he referred to there being a provision somewhere else in the raft of immigration legislation that deals with notice in writing, I could not help thinking that consolidating all this legislation has defeated Government after Government, but it is something that is sorely needed.
I make one perhaps tiny point just to clear the undergrowth before the next stage. The noble Lord referred to Clause 67 of the Bill as providing for the negative procedure. I would have thought that it was the regulations and orders section in the 1999 Act—which actually takes us to the same point as it being negative—that would apply as Clause 1 is replacing a section of the 1999 Act. It would be helpful if before Report we could understand what the relevant provision is so that those of us who might be minded to suggest amendments know that we are proposing amendments to the correct section or clause. However, I am glad that we will have amendments on regulations which the Minister talks about as changing policy. Regulations set policy before it gets changed by subsequent regulations. That is what many of us are concerned with. I beg leave to withdraw Amendment 1.
“( ) paragraph 18B (detention of unaccompanied children);”
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
I rise to move the amendment standing in the name of my noble friend Lord Taylor of Holbeach and will speak to the other amendments in the group. We believe that the Government have transformed the approach to returning families with children in line with their coalition agreement commitment to end the detention of children for immigration purposes. We now propose, through these amendments, to give legislative effect to our current policies on family returns by putting key elements of the new process into primary legislation.
Ending child detention was previously debated during Committee in the House of Commons as a result of amendments tabled by my honourable friend Julian Huppert MP. In Committee, the then Immigration Minister, my right honourable friend Mark Harper, agreed that the department would see whether it was possible, either in whole or in part, to put some or all of current government policy into primary legislation. On Report in the House of Commons, my right honourable friend the Home Secretary announced the proposal to reinforce the commitment to end the detention of children for immigration purposes by putting these four key elements into primary legislation.
Baroness Hamwee
My Lords, I welcome these amendments. There is frequently talk in this House, and rightly so, about caring for the interests of children, reference to Section 55, the paramountcy principle and so on—but sometimes it is easier to say it than to put it into practice. These amendments articulate the practice and are about more than just principle.
In 2009 I was refused a visit to Yarl’s Wood by the Home Office. I never discovered whether I was thought to be subversive or whether I was thought likely to be someone who might attempt to spring a detainee, but I have visited Cedars. Yes, it is for detention for the reasons we have heard, but it is also about caring for people and preparing them for return. Having seen the facilities there and talked about the work that goes on, I have to say that the Cedars centre is a great deal preferable to scooping up a child and putting them straight on a plane out of the country. The care that is given and the thought that goes into the preparation impressed me very much. When I was there, I asked about the boundary wire round the premises. Although it was quite inconspicuous, it seemed to give the feel of detention, and I had observed it going in. I was told that it was to keep out local troublemakers.
I have a number of questions. One is about allowing one parent to be returned within the 28-day period, which might mean that a family is split and a child is separated from one parent. Will my noble friend tell the House about the circumstances in which separation would occur? Secondly, subsection (2)(b) of proposed new Clause 78A talks about a single parent or a carer. Is a carer a local authority foster parent? What is a carer in this context?
As regards the family returns panel, will my noble friend give the Committee assurances about how its independence will be assured? Secondly, for reasons that I think will be obvious, will he give assurances about whether the individuals concerned will have a means of giving information or making representations to the family returns panel, or checking that the information that it receives from others is accurate? These are important provisions.
As regards unaccompanied children, other noble Lords may remember the very effective and impressive Member of this House who died some years ago, Baroness Faithfull—Lucy Faithfull. I recall her talking about meeting an unaccompanied child arriving from, I think, Somalia. She told the story of having gone to Heathrow to meet this child in a social work capacity with a bar of milk chocolate to give to the child as a present. This child had never encountered milk chocolate before and was really scared about what she was being asked to eat. That story has remained with me as an example of the cultural gulf that has to be crossed and the hard work needed in dealing with children who arrive here unaccompanied.
In what circumstances is this provision used and what change in policy does it indicate? We have had confirmation that multiple 24-hour periods will not be applied, but will my noble friend say something—I do not know whether I missed it—about monitoring the use of the provisions and publishing data on the number of occasions, the circumstances and the length of time an unaccompanied child is detained, and so on?
Lord Ramsbotham
My Lords, I, too, pay tribute to government Amendments 10, 14 and 15; 10 because of the Independent Family Returns Panel about which the noble Baroness, Lady Hamwee, spoke. I agree with the importance of independence. There is no doubt that the Independent Family Returns Panel has made marked improvements to the process since it was formed, and that it is very well led and well worth listening to. I commend the coalition on the determination with which it has pursued the detention of children. Having served on the advisory board early in 2010, soon after the election, I am glad to see this clause in the Bill.
Finally, I am very glad to see the place of detention at Cedars, and I commend Barnardo’s for the way that it has conducted the care of families who have been in that place.
The Archbishop of York
My Lords, I, too, welcome this amendment. The noble and right reverend Lord, Lord Williams of Oystermouth, and I visited Yarl’s Wood when he was Archbishop of Canterbury. We were quite surprised and shocked, and made very clear representations about this particular question of the detention of unaccompanied minors. I am very grateful for what is happening here but again, like the noble Baroness, Lady Hamwee, I want to know whether the Minister can give us an assurance that there will be monitoring of the 24-hours issue and that it will not turn into a norm that nobody can question, so that we can find out whether this is healing a very difficult problem. However, for all of that, I welcome this particular amendment.
Lord Judd (Lab)
My Lords, this amendment is certainly a move in the right direction, but the one anxiety I have is that it still leaves matters very much in terms of systems and the responsibilities for ensuring systems are running properly. If we put ourselves in the position of the unaccompanied child, who may be going through all sorts of mental turmoil and agony—bewildered, uncertain and desperately in need of friendship and help—it would be good to hear a little about the Government’s thinking on how these real psychological, and consequently very often physical, needs of the young person are being dealt with. We have debated the policy in this Bill in previous years and, ideally, the child in this situation needs a personal champion, who is there throughout the process, advising, talking to and consulting them—if you like, a counsellor, who is there to enable the child to make sense of what is happening and being proposed and to enable the child to start developing his or her own views about what they really want to take place.
Lord Avebury
My Lords, these amendments, which are all concerned with the detention and removal of children, either on their own or as part of families, are a reflection of existing government policy, which, in the absence of these amendments, could be reversed without parliamentary oversight, as the Home Secretary observes in her Factsheet: Ending the Detention of Children for Immigration Purposes, issued last month. In fact, children are still to be detained, but in places described as “pre-departure accommodation”. The only place identified as such so far is, as has been mentioned, Cedars near Heathrow, which has hitherto been included in the list of short-term holding facilities to be discussed in the next amendment. It appears to me that holding children in Cedars is still detention, as I think my noble friend Lady Hamwee remarked, because the families are still deprived of their liberty, albeit in far more congenial surroundings than in immigration removal centres and even though they are no doubt looked after far better by child-friendly Barnardo’s than the impersonal money-making subsidiary of Capita that runs the IRCs.
Amendment 9 allows for a 28-day grace period following the exhaustion of appeal rights before a child and the relevant carer may be removed, during which it is hoped that agreement can be reached on their voluntary departure. This system is already operating on a non-statutory basis, but it would be useful if my noble friend could say what statistics there are on voluntary, as compared with forced, departures up until this point. In addition, are any resettlement grants available to families who agree to voluntary departure and what are the details of the organisation through which the voluntary departures and any associated grants are organised? They used to be organised by the International Organisation for Migration, but I think that that has changed in recent years.
The Earl of Listowel
My Lords, it is a pleasure to follow the noble Lord, Lord Avebury, with whom I had the honour to sit on the House of Lords European Union Sub-Committee F, when we looked particularly at issues around immigration. He may have been with us when as a committee we visited Yarl’s Wood immigration removal centre to take evidence. I am interested in the answers to what the noble Lord, Lord Avebury, asked when referring to encouraging voluntary return and in having some detail about what incentives are being offered on that. I share his concern about gaining some reassurance about the independence of the Independent Family Returns Panel, and I am also interested in what he said about the need for figures on the detention of unaccompanied children in the past.
My chief wish at this point—using this as the right place this time—is to pay tribute to the coalition Government for this huge change in the safeguarding of children. It was harrowing to visit the Yarl’s Wood immigration removal centre both as a member of the House of Lords European Union Sub-Committee and on two previous occasions early in the centre’s existence. Yarl’s Wood immigration removal centre, which took these families, was based very much on a category C prison, so it was very familiar to me, having visited Feltham young offender institution. One would see a mother, with her young child, coming through the admission room—just like Feltham, with the barred gate—and what would a child be thinking, having that experience, walking through this prison?
I pay tribute to the first Children’s Commissioner, who produced a number of important reports, which highlighted, for instance, how in going from admissions to the family wing there might be seven or eight separate doors that had to be opened with keys by the warder. There were important improvements to the regime under the Labour Government. However, towards the very end, as I said, I met a 16 year-old girl. Can your Lordships imagine what any girl or young woman would feel who was detained for 10 months, through no fault of her own or any action that she did wrong, separated from the pleasure of being with her peers? What can that be like? Of course, one understands why she was so angry with me and with us for allowing this to happen to her and her family.
I express my heartfelt thanks to the coalition Government for improving this situation so greatly, and I welcome these amendments.
Lord Roberts of Llandudno
My Lords, there are many things that show exactly what the heart of a nation is. One is the way in which we treat children of all races and all different backgrounds.
I remember 30 years ago at the time of the Ethiopian famine being in Tel Aviv and then in the Galilee and receiving the children and the folk from Operation Solomon. They came with nothing at all: the adults in their white gowns and the labels on their foreheads indicating who they were, and the children—well, I held one or two of them in my arms and they were so different from my own grandchildren. I am so grateful that my grandchildren are robust and enjoy life; these little children had nothing to enjoy.
Children are children wherever they are, whatever their background, and they need to be treated with respect and kindness wherever they happen to be. One reason I supported the coalition when we had those votes in 2010 was that the declaration came that we as Liberal Democrats would end the detention of children for immigration purposes. I am not sure that I would be in the coalition if it was not for that promise. Now we are on the last lap, I think, of showing that we really believe that.
In 2009, 2,000 children were detained for immigration purposes. In December last year, 22 children were detained some time or other during the month—not for days but for hours. There is the last lap, as has already been mentioned, where no child should be detained, but we are on the right course. I do not often compliment the Minister—although I hope he is a very good friend—on what is happening with the end of detention of children for immigration purposes.
Imagine a child—one of my own or your Lordships’ grandchildren, whoever they might be—waiting with their parents. The stress that their parents feel, which of course is transmitted to them, is terror. We are removing that terror. There is more to be done. Looking at the measures proposed, is this still the last resort, as it was previously? How and where can we bring this to fruition, so that our nation—I should say four nations: Wales, Scotland, England and Northern Ireland—will be shown to be a nation with real heart and real concern? I will be so happy if that can be the case.
Baroness Hussein-Ece (LD)
My Lords, I associate myself with the comments that have just been made on this important area by my noble friends Lord Avebury and Lord Roberts and by the noble Earl, Lord Listowel, who always speaks so eloquently on these matters. I apologise in advance if the points have already been covered, but I think that they need to be underlined further and made very clear.
We have had excellent briefings from Barnardo’s, which we know does so much work for these children. We know that unaccompanied children have been temporarily admitted to the United Kingdom, but they are not routinely detained prior to their return. There is concern, and government assurances have been sought, as to whether this situation could change in the future. It is worth making sure that unaccompanied children who are admitted temporarily will not start being routinely detained. I speak as somebody who in their previous role was a councillor in a local authority which had to deal with a fair number of unaccompanied children. All councils have responsibility as corporate parents to those children because they come into their care. My experience of those children who came into our care was always positive. I remember attending award ceremonies for children some of whom had come from worn-torn countries in a vulnerable and traumatised state but had gone on to become academically so proficient that they gained places in universities. They had turned their lives around with the right support. As the noble Lord, Lord Judd, said, when these children go before any panel that is to decide their future, it is important that councils in their role as corporate parents ensure that they are properly supported and represented, as any parents would do for their own children. They should get the right support and advice when it is being determined whether they remain or are returned, or whatever is best for their future. I would like an assurance on that.
Baroness Benjamin (LD)
My Lords, I always say that childhood lasts a lifetime, and all children need the best start in life. These amendments will give these children the best possible start and I congratulate the Government on putting them forward. I want to raise just one point on behalf of Barnardo’s—I speak as a vice-president of that organisation. I congratulate Barnardo’s on having made an important effort to make sure that all children are taken care of if they happen to come to this country in unfortunate circumstances. Although Barnardo’s welcomes the 28-day reflection period being enshrined in the law, it is concerned about the drafting of the clause, as it would allow one parent to be returned within the 28-day period as long as there is another parent to care for the child. This in effect allows any family to be split and for the child to be separated from one of their parents, with no restrictions on the circumstances in which it should happen. Barnardo’s believes that a child should be separated from their parent against their will only if it is in the best interest of the child; for example, if there are safeguarding concerns such as domestic violence. It wants appropriate safeguards to be put in place to prevent children being separated from their parents and traumatised in any way. I look forward to hearing the Minister’s response on this issue.
Lord Northbourne (CB)
My Lords, I am not entirely sure that this is an appropriate intervention; if not, I apologise and I shall be very brief. I happen to live near Dover. My wife has chaired a considerably large housing association in the area. It received a frantic call one day from the county council, saying, “We simply can’t cope. We’ve got all these unaccompanied minors arriving”. Those children came and it got to know them and so on. The majority of them were absolutely intentionally unaccompanied immigrants. Having been put on a boat in Calais and told to throw their passport into the water as they went across, they came into this country and there was nothing that we could do to change it. Is that situation still the same and, if so, can the Minister perhaps comment on that aspect of it also?
Lord Rosser
We welcome the Government’s amendments, which lay down requirements in the Bill in relation to the removal of families with children and also unaccompanied children. We will consider the objectives of the Government’s amendments, which the Minister gave in moving Amendment 3. No doubt we will do so in more detail in response to the questions and points that have been raised today.
Lord Wallace of Tankerness
My Lords, I am grateful to all noble Lords who have taken part in this debate. I acknowledge the welcome that has been given to these particular moves. I assure your Lordships’ House that the Government take very seriously our duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to carry out our functions,
“having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.
As I indicated in moving the amendment, the intention is to lock in, on a statutory basis, what has been an administrative change in policy. I assure my noble friend Lady Hussein-Ece that that is the purpose here; it is not to lay the pathway towards a change in policy. We believe that we have implemented a good policy, one that has commanded support from all quarters of your Lordships’ House. We wish to ensure that that cannot be undone in future except by a change to primary legislation.
Noble Lords commented on Cedars. I confess that I have not been there; that is something I maybe ought to do given what has been said about it in the course of this short debate. My understanding is that it could not be further in look or feel from an immigration removal centre such as Yarl’s Wood. It is important to emphasise, again, that families are held there only as a last report, for only a short period prior to their return and only after safeguarding advice has been sought from the independent family returns panel. Since Cedars was established, Barnardo’s has provided dedicated social work, welfare services and family support to children and their families there. I echo the compliments and praise paid to the work of Barnardo’s by a number of those who have contributed to this debate.
I will try and respond to a number of points. First, my noble friend Lord Avebury asked some questions about numbers. There are published data on voluntary returns, enforced returns and other outcomes in the family returns process. I will certainly send those data to my noble friend. I do not have details as to what the voluntary packages look like but if I can I will try to set out some of those, too. I think everyone would agree that if a voluntary arrangement can be made it is a far better outcome, not least for the dignity of the family. However, published statistics show that, under the old system, 1,119 children entered detention centres such as Yarl’s Wood in 2009, and 436 in 2010. By contrast, the latest statistics show that in the first three-quarters of 2013, seven children—at that time believed to be adults—were held in immigration removal centres and subsequently released following an age assessment. Some 64 children have been held briefly at the Tinsley House family unit after being stopped at the border and 68 children have been held at the new pre-departure accommodation for very short periods prior to leaving the United Kingdom.
On Amendment 9, my noble friend Lady Hamwee asked who a carer is in proposed new Section 78A(1)(b) and whether that included the local authority. No, the carer must be someone who has been living with the child and subject to removal as well. That rules out local authority carers but captures a situation where, for example, a child is part of a family unit with an aunt. In those circumstances, the family unit would benefit from the protection here.
My noble friends Lady Hamwee and Lady Benjamin raised the possibility of families being separated during the 28-day reflection period. As I sought to emphasise when moving the amendment, we will always seek to ensure that families remain together during the return. However, temporary separation may sometimes be necessary to safely ensure the family’s return. We would not separate a family solely for a compliance reason. It would always be where it was considered in the best interests of the child to be temporarily separated from their parent or where the presence of one of the parents or carers was not conducive to the public good. We would never separate a child from both adults for immigration purposes, or from one in the case of a single-parent family, if the consequence of that decision is that the child would be taken into care.
My noble friend Lord Avebury asked whether we can always give families a copy of the factual summary in the case. We have been working on making these documents more readily available. I am sure your Lordships’ House will readily appreciate the sensitivities involved in sharing these documents and the timings of the returns process. Indeed, one of the particular concerns is that individual members of a family may have provided information in confidence. There is a level of sensitivity around this, although as I indicated we have been working on making those documents more readily available.
My noble friends Lady Hamwee and Lord Avebury asked about the independence of the Independent Family Returns Panel. Appointments to the panel are made in accordance with the code of practice published on 1 April 2012 by the Commissioner for Public Appointments. This ensures that panel members are appointed on merit following a fair and open selection process, and the process does not compromise the panel’s independence. It includes an independent chair and other members with safeguarding and medical expertise, and provides independent advice to the Home Office on the method of return of individual families when an enforced return is necessary. The advice provided by the panel helps ensure that individual return plans take full account of the welfare of the children involved and that the Home Office will fulfil its responsibilities under Section 55 of the Borders, Citizenship and Immigration Act 2009.
I was also asked about the situation regarding the detention of unaccompanied children. I sought to make clear when moving the amendment that it is possible that a removal attempt will be unsuccessful for reasons that may be beyond the Government’s control. For example, a plane may develop a technical fault. When this happens, we accept that children should not continue to be held in a short-term holding facility for more than 24 hours. They should be released and given time to rest and recuperate. But the fact that a removal attempt is unsuccessful should not mean that such people are automatically entitled to stay in the UK. It should still be possible to enforce immigration decisions. It may therefore be necessary, after a suitable period, to attempt removal again and this may require a further, short, period of detention.
I reiterate what I said earlier. While it is vital that we enforce immigration decisions in these circumstances, we will not hold children for multiple 24-hour periods in order to achieve this.
One of the points raised by the noble Lord, Lord Northbourne, relates to holding unaccompanied children who arrive at the border. Where a child is travelling alone or is identified as a potential victim of trafficking, we may need to hold them for a very short period while we arrange for them to be taken into the care of local children’s services. I do not have figures as to how often this has happened, but all border force officers are given training on trafficking and child protection, so they know what to look out for. To support this we use a system of risk profiles, alerts, and intelligence tools to give officers the information they need to intervene in cases of suspected trafficking.
The noble Lord, Lord Judd, asked about a counsellor for unaccompanied children. It is the view of the Government that the child’s needs and interests are best protected by all the professionals already involved in the care-working. It is better that they do this together and that they each perform and fulfil their statutory responsibilities. Local authorities have a statutory duty to ensure that they safeguard and promote the welfare of children under Section 11 of the Children Act 2004 regardless of the immigration status of the children. I rather suspect that some of the valuable work done by Barnardo’s also helps support children, who I accept are at a very difficult time in their lives.
I think it has been recognised by those who have contributed to this debate that, in view of how difficult and sensitive this could be, the Government have taken great strides to try to put this on a proper basis. It is very different from what it was in the past. I recommend these amendments to your Lordships’ House.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I believe it is time for the amendment to be agreed.
Earl Attlee
My Lords, it is in order for the noble Lord, Lord Judd, to speak.
Lord Judd
My Lords, I am very grateful to the Minister for his response to my observations on unaccompanied children. I wonder whether it would be possible for the Government to make provision whereby it was required that every unaccompanied child subject to a removal process should have a qualified and transparently independent counsellor specifically allocated to them to guide them through what may be a nightmare situation.
Lord Wallace of Tankerness
My Lords, I hear the noble Lord’s point and I think I understand what lies behind it. I was trying to make a point about what our view has been. We should probably also recognise that unaccompanied children may arise in a number of different circumstances. For example, as I was indicating, some might potentially be the victims of child trafficking, which might raise a different set of considerations from others. If a professional team has already been involved in a case, we would not want to cut across that by bringing in someone new at that stage. I recognise the importance of what the noble Lord is saying; I will reflect on it and if there is more that I can add to the answer that I have given, I will write to him.
“Restriction on removal of children and their parents etc
After section 78 of the Nationality, Immigration and Asylum Act 2002, insert—“78A Restriction on removal of children and their parents etc
(1) This section applies in a case where—
(a) a child is to be removed from or required to leave the United Kingdom, and(b) an individual who—is also to be removed from or required to leave the United Kingdom (a “relevant parent or carer”).(i) is a parent of the child or has care of the child, and(ii) is living in a household in the United Kingdom with the child,is also to be removed from or required to leave the United Kingdom (a “relevant parent or carer”).(2) During the period of 28 days beginning with the day on which the relevant appeal rights are exhausted—
(a) the child may not be removed from or required to leave the United Kingdom; and(b) a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom.(3) The relevant appeal rights are exhausted at the time when—
(a) neither the child, nor any relevant parent or carer, could bring an appeal under section 82 (ignoring any possibility of an appeal out of time with permission), and (b) no appeal brought by the child, or by any relevant parent or carer, is pending within the meaning of section 104.(4) Nothing in this section prevents any of the following during the period of 28 days mentioned in subsection (2)—
(a) the giving of a direction for the removal of a person from the United Kingdom,(b) the making of a deportation order in respect of a person, or(c) the taking of any other interim or preparatory action.(5) In this section—
“child” means a person who is aged under 18;
references to a person being removed from or required to leave the United Kingdom are to the person being removed or required to leave in accordance with a provision of the Immigration Acts.””
“Independent Family Returns Panel
Before section 55 of the Borders, Citizenship and Immigration Act 2009, insert—“54A Independent Family Returns Panel
(1) The Independent Family Returns Panel is established.
(2) The Secretary of State must consult the Independent Family Returns Panel—
(a) in each family returns case, on how best to safeguard and promote the welfare of the children of the family, and(b) in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.(3) A family returns case is a case where—
(a) a child who is living in the United Kingdom is to be removed from or required to leave the United Kingdom, and(b) an individual who—is also to be removed from or required to leave the United Kingdom.(i) is a parent of the child or has care of the child, and(ii) is living in a household in the United Kingdom with the child,(4) The Secretary of State may by regulations make provision about—
(a) additional functions of the Independent Family Returns Panel,(b) its status and constitution,(c) the appointment of its members,(d) the payment of remuneration and allowances to its members, and(e) any other matters in connection with its establishment and operation.(5) Regulations under this section must be made by statutory instrument.
(6) An instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) In this section—
“child” means a person who is under the age of 18;
“pre-departure accommodation” has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;
references to a person being removed from or required to leave the United Kingdom are to the person being removed or required to leave in accordance with a provision of the Immigration Acts.”.”
Lord Avebury
“Short-term holding facilities rules
(1) Within six months of the passing of this Act, the Secretary of State must make rules for the regulation and management of facilities maintained for the purpose of the detention of a detainee for a period up to 7 days (“short-term holding facilities”).
(2) Short-term holding facilities rules may, among other things, make provision with respect to the safety, care, health, activities, discipline and control of detained persons.”
Lord Avebury
My Lords, as the Minister is aware, we have been concerned about the disgraceful conditions of the short-term holding facility at Heathrow Airport for some time. These facilities and others like them are not subject to any rules making provision for the health, safety, care, activities, discipline and control of the persons detained in them, unlike immigration removal centres, which have been subject to a set of rules of this kind since 2001.
The short-term holding facilities are defined in Section 147 of the Immigration and Asylum Act 1999 as places,
“used solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed”.
These facilities are needed for persons either arriving in the UK whose status is being investigated by an immigration officer or being returned to their country of origin, having exhausted their rights of appeal. All 36 of them are managed by contractors on behalf of the Home Office. The main provider used to be G4S but that role has now been taken over by another private contractor, Tascor, highlighting the fact that the Home Office itself no longer has the expertise in-house to resume the management of operations that have been privatised and are no longer effective.
Since 2006, when the UN’s optional protocol to the UN convention against torture came into effect, we have been required to provide inspections by an independent expert body to routinely visit and report on all places of immigration detention to prevent the inhuman and degrading treatment of detainees. This task is being performed both for immigration removal centres and for short-term holding facilities by the Chief Inspector of Prisons, whose remit extends well beyond that of the convention to detainee welfare, the need for a decent and respectful approach to detainees by staff and the physical conditions of detention. In the case of the IRCs, there are detailed rules governing such matters as welfare and privileges, religion, communications, healthcare, requests and complaints, and it has been the Government’s intention, ever since 1999, to publish an equivalent set of rules for short-term holding facilities. Drafts of the rules were published in 2006 and there was a consultation on them, but a final version was not presented to Parliament. In 2009, the same thing happened again: there was a draft followed by a consultation, but no sign of the finished product from that day to this. When inquiries were made of policy officials in the Home Office on my behalf, those officials said,
“the rules have been subject to various delays and as such have yet to be finalised”.
That was more or less the same as the answer the Minister gave when the noble Lord, Lord Ramsbotham, asked him about when the rules would appear.
The Archbishop of York
My Lords, I stand again to support this wonderful amendment with its mover. What is going on here? This makes sense to me. There are detention centre rules which govern immigration removal centres, but the short-term holding facilities in airports, as has already been mentioned, are very different. In some of them—for example, Pennine House in Manchester where, sadly, a Pakistani man died last July—people can be held for up to seven days. There need to be published rules to provide a sound governance structure. Without that, we will not be reassured. People can be held at times of great personal and familial stress. The intention behind the amendment is to make sure that these facilities make good provision, with clear rules, for safety, care, health, activities, discipline and control of detained persons. Who would argue against that?
Lord Ramsbotham
My Lords, I support the amendment so ably moved by the noble Lord, Lord Avebury. When I took over as Chief Inspector of Prisons and was given the responsibility for immigration detention centres, I was horrified to find that all of them were geared only for the short term and had no long-term arrangements for people who were there for a long time. When I went into it, I discovered that the reason for this was the lack of direction from the Home Office. There was at that stage the Immigration and Nationality Directorate, which was meant to be running the centres, and they were all let out on contract, but there was no overall drive, no direction.
The fact that we have now been waiting for longer than World War II for this matter to be resolved suggests that that lack of direction and drive obtains across the whole immigration detention centre system anyway. I am still told by members of immigration monitoring boards that, in fact, the centres where people are held—sometimes for years, let alone months—are not geared to look after their needs in any more than the short term, about which I asked last October and which has been so ably described by the noble Lord, Lord Avebury. It is important not just that the Government do this in six months, but that they appoint someone responsible and accountable for overseeing these centres, and seeing that things actually happen.
Lord Taylor of Holbeach
My Lords, I appreciate the concerns of my noble friend Lord Avebury, the comments of the noble Lord, Lord Ramsbotham, and the concerns of the most reverend Primate the Archbishop of York. They have caused my noble friend to table the amendment, and caused us to debate not just the rules but the provision of facilities.
I start by reassuring the noble Lord, Lord Ramsbotham, that in the past year the Home Office has been in acute dialogue with Heathrow Airport Ltd about the Heathrow Airport facility to progress accommodation units. That is now bearing fruit. My noble friend Lord Avebury asked me if I could place information on the design of these facilities in the Library. I understand that HAL, the Border Force and, for that matter, the Home Office are in final discussions on the detailed design stage and, indeed, are going out to contractors for quotes in March of this year—that is, now. If that is the situation, I am sure that I will be in a position to satisfy my noble friend’s request to place a copy of the design in the House Library, and I will seek to do that for him.
I am aware that there has also been a lack of legislative framework governing the operation of the short-term holding facilities. As has been pointed out by noble Lords, this has been a matter of concern for years to a number of interested parties, including Her Majesty’s Chief Inspector of Prisons, who has responsibility for inspecting the UK’s detention facilities. The delay in introducing these rules is regretted, but it has been a case of unavoidable delay being caused by a number of different reasons, including, most recently, the discussions surrounding the legislative framework that should apply to Cedars, which we have just discussed, which initially had been classified as a short-term holding facility and, as such, would have been covered by these rules. We have just debated those amendments. Accordingly, today, I give my noble friend a commitment that separate sets of rules governing the management and operation of short-term holding facilities and the Cedars pre-departure accommodation will be introduced before the Summer Recess. With that, I hope that my noble friend will feel able to withdraw his amendment.
Lord Avebury
It remains only for me to thank the most reverend Primate the Archbishop of York and the noble Lord, Lord Ramsbotham, for their powerful support for this amendment. I also thank the Minister not only for the very welcome reply that he has given to this debate but for the close attention that he has paid to the correspondence that we have had over the past few months, particularly on the facilities at Heathrow. I am delighted to hear him give the assurance that we will have separate sets of rules for the short-term holding facilities and the pre-departure accommodation within a shorter space of time than I asked for in the amendment. It is rather an unusual experience to have a Minister grant something better than that for which the amendment asks—I think it is probably unique in my 52 years in one House or the other. I can only say how grateful I am to my noble friend and how much we look forward to the implementation of his kind undertakings. I beg leave to withdraw the amendment.
Lord Rosser
“(2) The enforcement powers provided for in Schedule 1 are subject to oversight by—
(a) the Chief Inspector of Borders and Immigration,(b) the Independent Police Complaints Commission, and(c) HM Inspector of Prisons.”
Lord Rosser
My Lords, Amendment 12 provides for the enforcement powers provided for in Schedule 1 to be subject to oversight by the Chief Inspector of Borders and Immigration, the Independent Police Complaints Commission and Her Majesty’s Inspector of Prisons. The powers introduced by Schedule 1 include escorting and searching detained persons and entering and searching premises. There is also provision for a wider interpretation of the general power to use reasonable force compared with that in previous immigration Acts, and the schedule increases the powers of immigration officers, including with regard to the power to use reasonable force.
This is an important issue, not least in the light of the inquest into death of Jimmy Mubenga in late 2010, following the restraint used as part of his deportation undertaken by a private sector company. In that case, the coroner determined that the cause of Mr Mubenga’s death was an unlawful killing under existing provisions of immigration law. The coroner highlighted several areas of concern, including lack of training in scenario planning in relation to the use of force by private sector companies, dangerous restraint techniques being used at that time and a lack of accreditation of particular officers.
As Schedule 1 now extends the powers regarding the use of reasonable force to previous immigration Acts and gives additional powers to immigration officers on escort, search and entry, we need at the very least some assurances that immigration officials will receive or are now receiving training on the use of restraint and reasonable force that is on a par with that given to police officers. We also need assurances that these increased enforcement powers will be subject to proper oversight, and by whom, and that that oversight will also apply to the private sector. Is it the Government’s intention to issue guidance on how the provisions of Schedule 1 should be enacted, not least the power to use reasonable force, or will it be left to each company and organisation involved to interpret as they see fit how and when to use the considerably enhanced powers that they are being given? Will it be left to each organisation affected to produce its own definition of reasonable force and the circumstances in which it can be used? I hope that that is not the case.
I hope that the Minister will recognise the concerns on this issue, already expressed earlier today, and that, in the light of the discussions that he has had with the noble Lord, Lord Ramsbotham, on a possible code of practice, he will feel able to offer more than a belief—although genuine, I am sure—that everything will be all right on the night. I beg to move.
The Archbishop of York
My Lords, Amendment 12 provides what I believe to be a necessary safeguard to reassure the public that those responsible for enforcement are fully accountable. Accountability is at the heart of all of this. This is surely an improvement as it ensures independent oversight by Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Chief Inspector of Borders and Immigration of enforcement powers, such as searching persons and premises as well as the general power to use reasonable force. If we are confident that such powers are always fairly and humanely exercised, there is nothing to fear from this amendment. If we are not, then this amendment is absolutely necessary.
Baroness Williams of Crosby (LD)
My Lords, I will speak briefly on Amendment 12. I congratulate the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith, on bringing it forward.
It is very striking that the positions of the people mentioned who should be involved in oversight are intended to be independent. That is clear with regard to the IPCC, but is also the case with the Inspector of Prisons, as is exemplified by the remarkable record of the noble Lord, Lord Ramsbotham, when he was Inspector of Prisons, and calls on an old tradition that rules will be enforced and kept in respect of the Prison Service, with a long and remarkable record among prison officers in terms of these expectations. I was a Minister of State in charge of prisons for a while and I was impressed by the level of responsibility shown, particularly by prison officers who had worked in prisons for a period of time. They often had a strong sense of responsibility for those with whom they worked, who were held in prisons in the ordinary criminal justice system. There has been nothing like the same level of expectation regarding rules or ethics within the immigration estate as we had in the Prison Service at its best.
Amendments 9 and 10 have already been discussed and I will not return to them, but I will say very loudly that they show how remarkably a concerned and responsible Minister can alter the culture and attitudes of those for whom he or she is responsible and over whom he or she has oversight. The problem, quite simply, is that the Home Office has not had that oversight, particularly in respect of the outsourcing of responsibility for people who are detained or who are held under the immigration provisions of many earlier Acts. That is only too clear in the complaints and concerns that arise over the handling and management of that estate. We are grateful for Amendments 9 and 10. They are very detailed and have been carefully worked out. However, I repeat the question of the noble Lord, Lord Rosser, about whether there is any training for immigration officers who now have the responsibility for enforcement. I will go further and ask whether the Home Office writes into its contracts with the private companies to which it extends the right to run these establishments a specific requirement that the practices that we hope to be embodied in the code will be upheld. Does it hold them responsible for reporting on any breaches of those rules and codes of practice? Does it hold them responsible for any accidents, injuries or deaths that occur in the establishments for which they are responsible? If the number of those is seen to be unusually high or if they are inexplicable, will real consideration be given to withdrawing the contracts as soon as possible? The contracts should clearly indicate that they are conditional on the proper running of those establishments.
Lord Ramsbotham
I will speak to Amendment 13, in my name and that of the noble Lord, Lord Roberts.
I am very grateful to the noble Baroness, Lady Williams, for highlighting some of the points that were in the code of practice that I gave to the Minister, as I mentioned earlier. I did not read out all the points but I did mention that there were three codes that I had produced. One concerns the use of restraint. I will mention the three elements in that, which say that the Home Office must:
“Confirm the Independent Advisory Panel on Non-Compliance Management … as a permanent establishment”,
and that one member must have,
“experience of both the design and use of restraint techniques in a wide variety of settings, both custodial and non-custodial”.
The Home Office must also:
“Lay down precisely what safe and pain-free restraint techniques are acceptable in various situations such as vehicles transporting returnee to airport, transfer from vehicle to aircraft including in crowded airports, and in economy class on board commercial, passenger-carrying aircraft”.
Finally, the Home Office must “specify compulsory training requirements” for detainee custody officers,
“and other escorts, including compulsory continuation training”.
I repeat that because the amendment in the name of the noble Lord, Lord Roberts, and myself, refers particularly to the use of the word “reasonableness”. I am sure that the Minister will agree that it was not reasonable force that caused the unlawful killing of Jimmy Mubenga in an airport, and the 78 other cases that I presented to the Home Office, along with numerous others. I suggest that the problem is that the Home Office has delegated all use of force to the contracting companies without overseeing it or insisting that anyone do so. I suggest to the Minister that it would be a very good thing if the Home Office thought through and tried to define what “reasonable” is.
It seems to me that there is a mnemonic, “JPLANS”, which provides the circumstances that must be honoured in using force. The letters stand for six phrases. The first: is the force “justifiable”? It might be lawful, but that does not make it justifiable. All other options must be considered before it is used. Secondly, it must be “proportionate” to the behaviour and consequence it was intended to prevent. Any force used should always be the minimum necessary to achieve a lawful objective.
Thirdly, it must be “lawful” in all circumstances and, provided the person has done what he honestly or instinctively thought was necessary in all the circumstances, and no more, that would be good evidence that he has acted reasonably and lawfully. Force must never be used as a punishment to intentionally cause pain, injury or humiliation. Fourthly, use of force must also be “accountable”; one must always be prepared to account for any force used. Force should be used only as a last resort, and one must be able to demonstrate that this was the case.
Fifthly, force must be “necessary” in all circumstances, and consideration should be given to any other reasonable alternatives: could the situation have been resolved without the use of force? Were risk assessments properly carried out before the removal to reduce tension and any consequent need to use force? Could this have included a planned meeting between the escort and the person they were escorting in order to try to build up a relationship that might remove the tension?
Finally, was the force used “safe and supportive”? Techniques and procedures must be applied correctly and safely, and the person on whom they are applied must be monitored to ensure their safety. There are some techniques and facilities that are known to give rise to a foreseeable risk of injuries. They are permitted only in extreme circumstances and will have to be justified by the member of staff who uses them.
I do not think that anyone writing “reasonable” without thinking it through can have applied the JPLANS test. I therefore suggest that the Minister considers a definition of “reasonable” whereby any use of force must be necessary, reasonable and proportionate, and applied for the minimum period necessary to achieve the lawful objective. If that definition were in the Bill, rather than just the word “reasonable”, I would find it a great deal easier to accept. I suspect that it would be much more supportive of the regime that I hope the independent advisory panel will impose, which should not consist merely of repeating techniques designed for use in custody that are wholly inappropriate when removing a detainee.
Lord Avebury
My Lords, I wish to say a word or two in support of the amendment. Currently, the use of force by an immigration officer is licensed under the Immigration Act 1971 and the Immigration and Asylum Act 1999. Paragraph 5 of Schedule 1 amends this to license the use of force under eight other Acts passed since 1971, and any future legislation that may be included in the definition of “the Immigration Acts”. The Explanatory Notes wrongly claim that this “clarifies” that the power is not limited to the exercise of powers under the 1971 and 1999 Acts, which would mean that the power already exists. In fact, the use of force under any of the eight Acts not already covered would be unlawful until the Bill is passed, as I hope my noble friend will concede.
No justification is given for this extension of the power to use force. On the contrary, there have been huge concerns about the use of existing powers, as in the case of Jimmy Mubenga, and in the report of the chief inspector on the use of force to remove a pregnant woman and her child via Cedars. The former Immigration Minister gave an assurance that the power to use force was confined to immigration officers as distinct from workers employed by private contractors on detention and removal activities. However, private contractors do use force, as has been mentioned and as the noble Baroness, Lady O’Loan, found in her report of March 2010.
In the chief inspector’s report on an unannounced inspection of Harmondsworth in August last year, it was found that a wheelchair-bound, low-risk detainee who had suffered a stroke was handcuffed on a hospital visit, and other cases were noted in which the use of handcuffs was “grossly excessive”, including one case in which the individual was sedated and undergoing angioplasty, and another in which an 84 year-old man suffering from dementia died while still in handcuffs. It is clear that some immigration officers have no idea whatever about proportionality in the use of force—a matter that was referred to by the noble Lord Ramsbotham—and each and every extension of this power should be separately justified.
Lord Roberts of Llandudno
My Lords, I repeat what I said earlier about the need for proper training and assessment of those who are legally able to use force. I do not have a great deal of confidence in some of these private companies, which have already failed in different ways. The Home Secretary should take very much to heart the suggestion that we need people who are able to exercise their duties in a way that is humane and within the Act because, as the report of the Chief Inspector of Prisons regarding the use of force against pregnant women and children said, it must not be contemplated. We need a review of the whole procedure, which we can come out of with a feeling that at least the best that can be done is being done.
The Archbishop of York
My Lords, I will speak to Amendment 13 of the noble Lords, Lord Roberts of Llandudno and Lord Ramsbotham. The trouble is that paragraph 5 of Schedule 1 widens the authorisation under which immigration officers can use “reasonable force” to cover all their powers in all immigration Acts, rather than just the specific powers of arrest, search and entry given in the 1971 and 1999 Acts. Such blanket permission for something as indefinable as “reasonable force”, as the noble Lord, Lord Ramsbotham, illustrated, is pretty unwise.
Surely it is important that any extension of use of force by agents of the state is justified in detail, rather than in this sweeping manner. For example, the use of force against pregnant women or children in a variety of contexts is problematic. I support Amendment 13 and hope that it will go in the direction of the definition given by the noble Lord, Lord Ramsbotham, of what could be included in the Bill about what we mean by the rather blanket word, “reasonable”. What is reasonable to me may be completely unreasonable to another person, unless it is defined.
Lord Mawhinney (Con)
My Lords, I will not take up much of your Lordships’ time because what I had wanted to say was said much better by the noble Lord, Lord Ramsbotham. In my reading of Schedule 1, I noted the words:
“The power to search … may be exercised only to the extent reasonably required”.
I do not know what “reasonably required” means; I do not know what “reasonably” means, and I do not know what “required” means. By whom is the power to be used and against what standard? I say to my noble friend on the Front Bench, who knows that I am supportive of this legislation, that the noble Lord, Lord Rosser, has done your Lordships’ House a favour by enabling this short debate to take place. I hope that my noble friend will listen to the variety of views that reflect a similar theme on all sides of the House, and perhaps at a later stage come back with something that is slightly more definitive in relation to “reasonably required”.
Baroness Benjamin
My Lords, many noble Lords have mentioned training for immigration officers. What training do they have on understanding the medical conditions such as sickle cell disorder that those with African and Caribbean heritage may have, which can occur under stressful circumstances and may require immediate attention because they can lead to fatal strokes and even death?
Lord Hope of Craighead (CB)
My Lords, it may be proper now to raise a point of detail on Amendment 12 in case the matter is taken any further. Noble Lords will know that the Bill applies to Scotland and Northern Ireland as well as to England and Wales. We see that in Clause 69, which applies to Schedule 1 as it does to most other provisions in the Bill. The problem with the amendment is that it refers to two people who have oversight of matters in England and Wales, but does not include their equivalents in Scotland and Northern Ireland. Certainly, so far as Scotland is concerned, there is a separate police complaints commissioner and there is a Scottish inspector of prisons. I am not sure of the details in Northern Ireland but they could no doubt be checked as well. My point is that if the oversight provisions are to be carried across all the jurisdictions, we should be careful to include and mention them in this particular clause.
There was a related point, which the Minister might like to confirm. I take it that the codes that have been referred to apply to Scotland and Northern Ireland as well as to England and Wales. It is very important that there should be uniform standards throughout the entire country in these important matters.
Lord Taylor of Holbeach
My Lords, this has been a useful debate because it has enabled me to address a number of issues, some of which are the subject of the Bill's provisions and some of which go a little broader to address the role of contractors. The Bill itself and the amendments address only the powers vested in immigration officers. I would like to reassure the noble Lord, Lord Rosser, that effective regulatory oversight of the way in which the new enforcement powers in Schedule 1—and indeed other immigration powers—will be exercised, is already in place.
In England and Wales, the Independent Police Complaints Commission, as the noble and learned Lord, Lord Hope of Craighead, pointed out, provides oversight of serious complaints, matters of conduct, and incidents involving immigration officers and officials of the Secretary of State exercising immigration and asylum enforcement powers. The IPCC’s remit also includes those officials exercising relevant customs and customs revenue functions within the UK Border Force. We should remember that this is UK-wide—there is no devolved power here. This is a reserved power for UK borders.
In relation to Scotland, the noble and learned Lord, Lord Hope of Craighead, is quite right to point out that the Crown Office and Procurator Fiscal Service has the remit to investigate deaths and allegations of criminality in respect of immigration and customs matters. In addition, all complaints about immigration officers and officials of the Secretary of State who are exercising immigration and asylum enforcement powers in Scotland may be investigated by the Police Investigations and Review Commissioner. That does not change under these provisions.
To ensure that this scrutiny is truly nationwide, we have included a provision in Clause 59, following agreement with the Northern Ireland Executive, to enable the Police Ombudsman for Northern Ireland to provide oversight of serious incidents, complaints and conduct matters in Northern Ireland where immigration and customs enforcement powers are exercised. Her Majesty’s Inspectorate of Prisons has a statutory responsibility to report on the conditions and treatment in all places of immigration detention in the United Kingdom. Furthermore, the UK’s border and immigration functions as a whole, including the use of enforcement powers such as those in Schedule 1, are subject to the independent scrutiny of the Chief Inspector of Borders and Immigration, Mr John Vine.
My noble friend Lord Mawhinney asked what was meant by “reasonably required” because that seemed to exercise a number of noble Lords. It means to the extent of finding the object of the search and no further. Indeed, noble Lords might be surprised to know that immigration officers have powers to search people who are being examined in ports for passports and other relevant documents, but they are not permitted to search those in detention for weapons or other dangerous articles that might cause harm to themselves or others. A protective search power is currently only available in respect of people who have actually been arrested. Immigration officers have a number of powers to enter and search premises for the purposes of finding material that would facilitate the investigation of current immigration offences. But the powers do not apply to illegal immigrants in immigration detention who have been arrested by immigration criminal investigators rather than the police.
A further example is that officers can search for relevant documents in the home of an arrested person or the premises at which they were arrested. They are not permitted to search the premises of a third party—for example, those of a relative or partner. The Government, quite rightly, are seeking to ensure that immigration officers have the powers that are currently available to contractors but not to immigration officers themselves.
Lord Mawhinney
I hope that my noble friend will excuse me because I readily acknowledge that he knows much more about this subject in detail than I do, but is he telling us that the words “reasonably required” relate only to the object of the search rather than to the way in which the search is carried out?
Lord Taylor of Holbeach
The use of force has to be reasonably exercised. In the case of search, that has to be reasonable too. The answer is that it is not an either/or. Reasonableness is at the heart of the process. I hope that that satisfies my noble friend.
Lord Mawhinney
I assume from what my noble friend said that he will go on to define, as other noble Lords have asked, who sets the standard of reasonableness and who monitors it in this context.
Lord Taylor of Holbeach
I set out earlier detail on those people who are responsible for oversight in this matter. Indeed, the training procedures and codes that apply in this area are designed especially to ensure that the people exercising these functions are properly aware of what is considered to be proportionate. I do not think that it is an unusual situation for anyone carrying out activity on behalf of a government agency. Reasonableness is perfectly well understood, which I think most noble Lords will know. I hope that I am being reasonable in the way in which I am answering my noble friend's question.
A number of noble Lords questioned the role of private contractors in this area. As I have explained, the amendments do not address private contractors. But detention staff are subject to a number of oversight and monitoring bodies. All complaints concerning the use of control and restraint are referred to the UKBA Professional Standards Unit, which passes all such allegations to the appropriate bodies such as the police or other oversight bodies where appropriate, and I have explained who they are.
In addition, independent monitoring boards, Her Majesty’s Inspectorate of Prisons and the Parliamentary and Health Service Ombudsman can conduct unannounced inspections of detention premises. Independent observers from Her Majesty's Inspectorate of Prisons and from independent monitoring boards also monitor a number of removal flights from the UK and I am intending to go on one such flight in a few weeks’ time.
Baroness Williams of Crosby
Before the Minister concludes his extremely reasonable remarks, may I press him on one point? Those companies to whom the conduct of these issues is outsourced need more than simple reference on to the Chief Inspector of Prisons or the IPCC. Could I therefore press him, before he concludes, about whether we can build in serious incentives to the companies to which these activities are outsourced so that they recognise that their contracts will be at risk if they fail to carry out the expectations of the conduct and behaviour that we are laying upon them in this very sensitive area?
Lord Taylor of Holbeach
My noble friend Lady Williams of Crosby and the most reverend Primate the Archbishop of York joined the noble Lord, Lord Ramsbotham, in raising the question of the effectiveness of quality control in terms of outcomes, how we enforce contracts, and whether we hold contractors responsible. We do exactly that. We have contract monitoring teams at each detention facility and individual detention and escort contractors are certified by the Secretary of State, and this certification can be withdrawn. As the noble Lord, Lord Ramsbotham, will know, a new training programme is being undertaken by the Home Office in this area. I have invited him to come along and look at the programme and perhaps contribute to its development because we feel it is very important that at the heart of good practice in this area lies oversight on the one hand, good management on the other and, at the bottom of all of that, good training for the operatives. I think it would be the wish of the House and, indeed, the Home Office that that is provided for. My noble friend Lady Benjamin asked if there was particular training given to officers on medical conditions. I am not in a position to give that answer on the spot but I am happy to write to her.
I turn to Amendment 13. We should make it clear that the provision to extend the use of force affects only immigration officers and does not make any change to the powers of contractors, those detainee custody officers and escorts, who have separate statutory powers to use reasonable force in their functions. We believe that immigration officers should be able to use their powers to the fullest extent, where it is necessary. If paragraph 5 were to be removed, it would not affect the majority of immigration powers of examination, arrest, entry, search, detention and fingerprinting, where officers are able to use reasonable force if necessary, as most of these are contained within the Immigration Act 1971 and the Immigration and Asylum Act 1999, as my noble friend Lord Avebury pointed out.
However, there are a small number of coercive powers, which sit in later legislation, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied, we intend that this should be set out explicitly in statute to ensure greater transparency. The use of force in these situations may be necessary for immigration officers to carry out their role effectively and safely, and I have given illustrations of that earlier in my response. I am sure noble Lords will agree that it would be hard to see, for example, how immigration officers could safely arrest a person for the offence of assaulting an immigration officer if they were unable to use reasonable force to restrain that person. It should be noted that the new enforcement powers proposed in the Bill make amendments to either the Immigration Act 1971 or the Immigration and Asylum Act 1999, so will already be covered by the existing provision for immigration officers to use reasonable force where necessary.
I can assure noble Lords that only immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards. Published guidance explains that the use of force must be proportionate, lawful, necessary, and age appropriate. It also sets out that force should be used for the shortest possible period, should be the minimum needed, should be used only when all other avenues of securing co-operation have been exhausted, and should be de-escalated as soon as possible.
Every instance where force is used is recorded in a comprehensive incident report. Out of 14,598 enforcement visits in the financial year 2012-13, force against the person was used in a little over 2% of cases. The issue of whether that use of force was reasonable must be justified on a case-by-case basis, as I have been explaining to my noble friend Lord Mawhinney. The extension of the power to use reasonable force will ensure that existing powers are able to be operated effectively, that they are in step with other law enforcement bodies’ powers, and that current enforcement practices are not at any risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute. Now I hope that I have been able to explain the context in which these provisions of the Bill are being proposed. In the light of these points, I hope that noble Lords will be reassured and feel able not to press their amendments.
Lord Rosser
Is the Minister still looking at what I understand is a code of practice—which the noble Lord, Lord Ramsbotham, has discussed with him—or are we to take it that the answer he has just given means that he does not see the need for a code of practice?
Lord Taylor of Holbeach
I think I can reassure the noble Lord, Lord Rosser, by the actions I took following the meeting that I had with the noble Lord, Lord Ramsbotham. He gave me a copy of the code of practice that he had produced following his review and I was pleased to take it back to the Home Office and feed it into the department. I would like to believe that the points that the noble Lord, Lord Ramsbotham, has made are being reflected in the approach that the Home Office is taking at the moment. There is naturally great interest in what he is suggesting. As I said, we are looking forward to the opportunity to allow him engagement with us on the development of the training programme.
Lord Rosser
I am not entirely sure whether that means the code of practice will see the light of day in any schedule to the Bill or whether it simply—I do not use the word “simply” in a derogatory way—means that the Minister intends that the Home Office may take account of what is in that code of practice in the practices that the Home Office seeks to ensure are adopted. I think the answer I have had is the latter rather than the former. That is what the Minister’s response indicates. As I understand it, the Minister said in his reply that the oversight powers throughout the United Kingdom are already there through the relevant postholder or commission. I think he has said that the extension of powers under Schedule 1 apply only to immigration officers and not to private contractors, and that appropriate training is or will be given in relation to the extension of the powers on reasonable force. That is what I have understood from the replies the Minister has given.
I shall obviously want to read in Hansard the words the Minister has actually used since it is easy to gain an impression when it is not the correct one. However, I thank him for his detailed response and, if noble Lords will forgive me for not naming them all, I thank them for taking part in the debate on these amendments. I was particularly impressed by the noble Baroness, Lady Williams of Crosby, who indicated that my amendment should have gone further than it did. I am not often told that, but there we are. I have to say that the points she made were extremely relevant. In the light of what the Minister has said, and on the basis that I intend to read his words carefully in Hansard to make sure that I have understood them fully, I beg leave to withdraw the amendment.
Lord Roberts of Llandudno
Before my noble friend the Minister sits down, can he tell me how many employees of these companies have been dismissed for this sort of heavy-handed behaviour?
Lord Taylor of Holbeach
I did feel rather comfortable until the noble Lord suggested that I had not yet sat down. I cannot give him the answer to that question, but if it is possible to do so, I will write to him.
Lord Taylor of Holbeach
“Restrictions on detention of unaccompanied children
(1) Schedule 2 to the Immigration Act 1971 (administrative provisions as to control on entry etc) is amended as follows.
(2) In paragraph 16, after paragraph (2) insert—
“(2A) But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B.”
(3) In paragraph 18, after sub-paragraph (1) insert—
“(1A) But the detention of an unaccompanied child under paragraph 16(2) is subject to paragraph 18B.”
(4) After paragraph 18A (as inserted by paragraph 2 of Schedule 1) insert—
“18B (1) Where a person detained under paragraph 16(2) is an unaccompanied child, the only place where the child may be detained is a short-term holding facility, except where—
(a) the child is being transferred to or from a short-term holding facility, or(b) sub-paragraph (3) of paragraph 18 applies.(2) An unaccompanied child may be detained under paragraph 16(2) in a short-term holding facility for a maximum period of 24 hours, and only for so long as the following two conditions are met.
(3) The first condition is that—
(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or(b) a decision on whether or not to give directions is likely to result in such directions.(4) The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.
(5) An unaccompanied child detained under paragraph 16(2) who has been removed from a short-term holding facility and detained elsewhere may be detained again in a short-term holding facility but only if, and for as long as, the relevant 24 hour period has not ended.
(6) An unaccompanied child who has been released following detention under paragraph 16(2) may be detained again in a short-term holding facility in accordance with this paragraph.
“(7) In this paragraph—
“relevant 24 hour period”, in relation to the detention of a child in a short-term holding facility, means the period of 24 hours starting when the child was detained (or, in a case falling within sub-paragraph (5), first detained) in a short-term holding facility;“short-term holding facility” has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;“unaccompanied child” means a person—(a) who is under the age of 18, and(b) who is not accompanied (whilst in detention) by his or her parent or another individual who has care of him or her.”.”
“Pre-departure accommodation for families
(1) Part 8 of the Immigration and Asylum Act 1999 (removal centres and detained persons) is amended as follows.
(2) In section 147 (interpretation)—
(a) after the definition of “custodial functions” insert—““detained children” means detained persons who are under the age of 18;”;
(b) after the definition of “escort monitor” insert—““pre-departure accommodation” means a place used solely for the detention of detained children and their families for a period of—
(a) not more than 72 hours, or(b) not more than seven days in cases where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975);”;(c) in the definition of “removal centre”, after “facility,” insert “pre-departure accommodation,”;(d) in the definition of “short-term holding facility”, at the end insert—“but which is not pre-departure accommodation.”
(3) In section 155 (custodial functions and discipline), in subsection (2), at the end insert “and in pre-departure accommodation”.
(4) After section 157 insert—
“157A Pre-departure accommodation
(1) The following provisions of this Part apply to pre-departure accommodation as they apply to removal centres—
(a) section 149 (contracting out of certain removal centres);(b) section 150 (contracting out functions at directly managed removal centres);(c) section 151 (intervention by Secretary of State).(2) In the application of those provisions to pre-departure accommodation—
(a) references to a removal centre contract are to be read as a contract made under section 149(1) for the provision or running of pre-departure accommodation;(b) references to a contracted out removal centre are to be read as references to pre-departure accommodation in relation to which a contract under section 149(1) is in force;(c) references to a directly managed removal centre are to be read as references to pre-departure accommodation in relation to which there is no contract under section 149(1) in force;(d) references to removal centre rules are to be read as references to rules made under subsection (4).(3) The Secretary of State may by regulations extend to pre-departure accommodation any other provision made by or under this Part in relation to removal centres.
(4) The Secretary of State may make rules for the regulation and management of pre-departure accommodation.”.”
Baroness Hamwee
“Presumption of liberty
(1) In the event of an application for bail from detention, an immigration office or the First-tier Tribunal must release the detained person on bail unless the First-tier Tribunal is satisfied that there are substantial grounds for belief that if released the person would—
(a) fail to comply with one or more of the conditions of bail or of any recognisance or bond, or(b) while on bail commit an offence which is punishable by imprisonment.(2) In subsection (1), “detention” has the same meaning as in Schedules 2 and 3 to the Immigration Act 1971.”
Baroness Hamwee
In moving Amendment 16 I shall speak also to Amendments 20 and 21, and included in this group are Amendments 17, 18 and 19. The first of the amendments sets out a new clause headed, “Presumption of liberty”, which covers exactly what it says. I find the term “bail” quite difficult in this context, with its connotations of the criminal justice system. Detention—or imprisonment, to be blunt about it—should require a positive decision: the rebuttal of a presumption, if you like.
The amendment may read as if I am introducing a philosophical debate, which I suppose I am, but in a rather less high-minded way I am seeking to put into the legislation what is set out in chapter 55.1.1 of the Home Office manual, Enforcement Instructions and Guidance, which states:
“The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used”.
I hope that the Minister will not argue that this is invariably followed because, like other noble Lords, I am sure, I have been given a number of examples of detention where it would be hard to argue that that is so. We are told that the UK detains people for longer than any other European country. As of July last year, 27 people had been detained for between 18 and 24 months, 11 for between 24 and 36 months and one person for up to 48 months. In December last year, some 220 people had been detained for more than six months. Many people are now detained in prisons where detention tends to go on for longer periods.
There are also a number of examples of inappropriate detention. Here I turn to my second amendment, which concerns the detention of people with mental illness. I say “inappropriate detention” as being what might be called a commensurate judicial criticism of their treatment and findings that the detention of people who are mentally ill is unlawful and breaches their Article 3 rights. I do not doubt that there will have been cases we do not know about which were settled before a full hearing, as happens a good deal in this area.
Baroness Smith of Basildon (Lab)
My Lords, although there are other speakers in this debate, I am rising early because I have a number of questions and I thought it would be helpful to give the noble Lord time to seek inspiration to respond to them.
As we have heard, Clause 3 amends the Immigration Act 1971 to ensure that in certain circumstances, that is, where removal is scheduled for the next 14 days, the Home Secretary must consent before a person is released on bail. It also amends the tribunal procedural rules to prevent repeat bail applications in the absence of a material change in circumstances, as we heard from the noble Baroness, Lady Hamwee. Our Amendment 18 is very specific. It specifies:
“In deciding whether to give consent to bail, the Home Secretary will consider whether the applicant is pregnant”.
Matters have not been very clear so this is a probing amendment. We chose the issue of pregnancy but we could have chosen anything else. The reason for tabling this amendment is more general. We are seeking clarification as to when the Home Secretary will approve bail, and what additional considerations will be taken into account.
Reading the clause and reading the debates that took place in the other place, it seems that there is a lack of clarity about what is intended by this clause. We understand that shortly before a person is due to be removed, there is a higher risk of absconding, and that it is right that in those circumstances bail should not be granted when the risk of absconding is high, unless—as the Government state at present and in the Bill—there are exceptional circumstances. The government statement of intent says:
“If the immigration judge considers that there are exceptional circumstances that mean an individual should be granted bail, despite removal being imminent, the Secretary of State will give serious consideration to release”.
Then it cites possible examples, including persons who are recently bereaved or have complex medical requirements.
It would be interesting to know what other circumstances the Government envisage here and to hear other examples of issues that should be considered by the Secretary of State when bail is being granted. We have proposed that one of them is being pregnant but I assume that the Government have other issues in mind. We have heard about mental health examples. That is one that came to mind, as well as primary care givers for young children or where somebody is dying. I appreciate that the pregnancy one is a narrow example. I am trying to understand how the government proposal works in practice and whether it will be effective or make any difference at all. For example, I should have thought that the risk of somebody absconding is something that the tribunal would take into account at the moment, as with bereavement and complex medical needs. What additional factors would then be taken into account by the Secretary of State that are not currently taken into account by the tribunal? If there are matters that should be taken into account by the tribunal but are currently ignored, should not the tribunal rules or the guidance be amended?
Under the Bill, the final decision would rest with the Secretary of State, so it is important to understand how and according to what factors and processes she—or perhaps in future, he—will make her decision. I found the debate in the other place in Committee quite helpful. The Minister there, when asked on the above point what other considerations would the Secretary of State take into account, said:
“The Secretary of State will consider the same factors as a tribunal, but she has ultimate responsibility for enforcing immigration action”.—[Official Report, Commons, Immigration Bill Committee, 5/11/13; col. 165.]
If no new factors are to be considered, why not leave the decision with the tribunal? It would be helpful to hear and understand the evidence showing that this measure is necessary, and showing how it would make a difference. Will the Home Secretary re-examine the evidence put before the tribunal, or will she exercise her power on other grounds even though that is not what the Minister, Norman Baker, said in the other place? It would also be helpful to understand the cost implications of any challenge to the Secretary of State’s decision. Again, the Government’s statement of intent says:
“Legality of detention will still be challengeable by way of judicial review or habeas corpus applications”.
However, given that the Secretary of State will exercise the power in this clause only when the immigration judge has said that there are exceptional circumstances that mean that an individual should be granted bail, if there is no clarity about the grounds on which the Home Secretary is making her decision, does that make a legal challenge more likely?
Further, given that a case of unlawful detention, if it were brought, would be heard in the High Court, is there not a danger of it becoming more expensive and more time-consuming, and causing more delays and imposing more costs to the taxpayer, than the fairly simple decision of whether to grant bail? The Government say that the current system costs money. That is one of the reasons for introducing the new measure. What consideration has been given to the possible costs of challenges under this system? My colleague Helen Jones asked this point in the Commons and the Minister, Norman Baker, did not really address the point, so it would be helpful if the Minister was able to respond today.
Leaving costs aside, what about those who cannot afford a judicial review claim? What will their recourse be if they believe a decision is wrong and the Home Secretary has overruled the immigration judge? Let us be clear: this matter goes to the Home Secretary to refuse an application for bail only if the immigration judge has said that there are exceptional circumstances in which bail should be granted. Therefore, I am still somewhat confused about whether the Home Secretary will take into account matters other than those considered by the tribunal and the immigration judge. Norman Baker says that she will not, but that raises the question about the evidence base for this change. From the response of Norman Baker in Committee in the other place, it appears that the Home Secretary could be making a political decision in overruling the immigration judge. There must be a concern that the decision-making process is therefore open to greater and more expensive legal challenge.
In trying to understand the clause, it would be helpful to clarify whether, when a bail applicant is told of a bail decision, they will be told whether the decision has been taken by an immigration judge or the Home Secretary. If they are not granted bail, will they know that in some circumstances that may have been a decision where the Home Secretary has overruled the immigration judge who has said that there are exceptional circumstances? Will the applicant know what the process is in that case? If, as Norman Baker has said, no new factors will be taken into account, the question will be whether the decision has been taken on the facts, or whether it has been taken on political grounds. Unless it is absolutely clear what criteria the Home Secretary has used, surely that could make it far more likely that those decisions will be legally challenged.
I am genuinely trying to fully understand why the Government are bringing forward the change. What difference will it make, if there is no difference in the criteria looked at, and what are the cost implications of what could be an increase in the number of judicial reviews? I have read the debate in the other place and the material that the Minister and the Government have provided, and these questions remain outstanding. It would be helpful if the Minister could provide some clarity on these points and the reason for this clause.
Lord Roberts of Llandudno
My Lords, I will speak to Amendments 17 and 19 about bail. The provisions in our amendments are modelled on Part 3 of the Immigration and Asylum Act 1999, which was never brought into force and repealed in 2002. We ask, first, what has changed since 1999 that the sense of gravity about the shortcomings of the system of immigration detention and the urgency of addressing them has gone so entirely? One thing is certain: they have not gone because things have got better. Things have got very much worse.
In these amendments, we propose automatic bail hearings after eight and 36 days. How long have we debated the need to provide for an effective automatic review of detention? Detention under Immigration Act powers is a matter, I am told, mainly of administrative convenience and, in the UK, is not subject to a maximum period. A detained person is not brought before a tribunal judge or a court unless he or she instigates this. The lack of any maximum period of detention, combined with the lack of regular and independent review of detention, may render this detention arbitrary. Amnesty International is one of those organisations that has powerfully advocated that every immigration detention decision should be automatically checked to see whether it is lawful, necessary and appropriate. Why should we do this? Because, at present, there are greater safeguards for criminal subjects than there are for immigration detainees and because people sometimes need reminding that those detained for immigration purposes are not criminals and have not committed any crime.
The group Bail for Immigration Detainees found that 23% of detainees surveyed had never had a solicitor while in detention. Of those who had, only one-third had ever had an application for release on bail made for them during their time in detention. When this is considered alongside the general length of immigration detention in the UK, and the possible indefinite nature of that detention, adequate bail provision is an absolute necessity. Automatic hearings would benefit all detainees but especially vulnerable and isolated detainees. Very recently, we heard the case here of Isa Muazu. I can speak to his pain as I went to see him. He was one among many who should not have been locked up with all the problems he had.
We must protect the rights of vulnerable groups such as the mentally ill, torture victims, victims of sexual violence and victims of trafficking. Currently, almost one in four detainees is held in the prison estate, where they face many practical and procedural barriers to accessing immigration advice and the immigration tribunals where they can try to obtain bail. They are not able to instigate applications in any meaningful way—it is a dreadful situation. Will, finally, this Bill include a provision that will remedy such a sorry situation?
Lord Harries of Pentregarth (CB)
I, too, will speak to Amendment 17. When I was the Bishop of Oxford, I had something to do with Campsfield House. What really concerned us at that time was the length of time for which people were held in detention. It is not at all encouraging that, some years later, this is still a major concern. As we know, around 220 people last year were held in detention for more than six months, without even taking into account the 936 who are held in prison. Why is this country so different from the rest of Europe in having no limit on the length of time that people can spend in detention? It is obvious, from so many of the facts and figures that are put before us, that a time limit helps you to achieve your purpose of removing people who have no legal right to be in the country. France, for example, has a time limit of 45 days for people in detention and it enforces 31% more removals of irregular immigrants and asylum seekers than the United Kingdom. We all know that if you do not have a deadline, things can slip and slip. Those of us who write are grateful that there is always a deadline, otherwise we would never get it done. If that applies with simple things such as writing, how much more are things liable to slip when trying to deal with a person’s case?
To reiterate the point, it has also been shown that the longer people are held in detention, the less chance they will be removed. Only 37% of those who were detained for more than a year were eventually removed, compared with 57% of those who were there for less than 28 days. Again, so many facts show that having a limit, such as 28 days, allows you to achieve what you want far more efficiently. That is, of course, without even taking into account the expense. It has been estimated that this amendment would save something like £87 million if it were accepted, because it is very expensive to keep people in detention.
There are alternatives. In Australia, for example, where there is an alternative based on case management, there is a compliance rate of something like 93%, of which 60% are voluntary removals. This is even without taking into account the human factor and the distress and extra suffering caused by allowing people to be detained. From the point of view of financial efficiency, and every other consideration, it is surely right that other alternatives should be looked at much more seriously than they are at the moment.
Lord Hope of Craighead
My Lords, I support these amendments. I should explain that at an earlier stage in my judicial career it was necessary for me to visit prisons so that I could see the conditions under which people were being held and understand the regimes that were being operated in these establishments. I recall very clearly visiting one of these places, where I came across people of the kind we are discussing this evening—detainees awaiting decisions about their immigration status. It struck me at the time that it was quite extraordinary to meet these individuals—who, after all, had either committed no offence or, if they had, had served their sentences—being held in prison conditions along with other prisoners. It is fair to say that a separate wing was set aside for them; nevertheless, the conditions in which they were being held were prison conditions. The noble Lord, Lord Roberts, said that it was a dreadful situation. I must say that I found it quite offensive to meet these people there when I spoke to them and discovered why they were there and what their problems were.
It seems that there is a great deal of force in Amendment 16, tabled by the noble Baroness, about the presumption of liberty, which takes us right back to the beginning of the exercise we are discussing. The points that are built into that amendment are those that would occur to any judge considering an application for bail in this situation. Most judges would, I think, see that the question to ask oneself is whether the individual would fail to comply with conditions or was likely to commit an offence. The value of having that set out in the Bill is that it will achieve some uniform standard throughout the system. The difficulty is that you have immigration officers and First-tier Tribunals up and down the country, and there will not be the same attention, uniformity of practice, application of presumptions and so on that one gets if the matter is set out in terms in the Bill. I would have thought that the matter was sufficiently important to do that, so that it would carry itself through the various steps that have been discussed by other noble Lords, with everybody knowing where they stand.
We are dealing here with people, many of whom will be held in prison conditions, who have either not committed an offence, or who have served their sentence and are being detained because time needs to go by for decisions about their status to be taken—that is all. It seems right that they should be given the benefit of the presumption of liberty.
Baroness Lister of Burtersett
My Lords, I cannot claim first-hand experience like other noble Lords, but I went to a meeting chaired by the noble Lord, Lord Roberts of Llandudno, where we heard from organisations that work with immigrants in detention. I thought that a powerful case was made—and has been made by other noble Lords—for the principles behind Amendments 16 and 17 in particular.
I will quote from a recent report by the Bingham Centre for the Rule of Law that emphasised as its cardinal principle the assumption of liberty. It stated another principle:
“The duration of detention must be within a prescribed applicable maximum duration, only invoked where justified”.
The report quotes a number of statements from the United Nations, in particular UNHCR detention guidelines that state:
“To guard against arbitrariness, maximum periods of detention should be set in national legislation. Without maximum periods, detention can become prolonged, and in some cases indefinite”.
It also quotes from a UNHCR global round table on alternatives to detention for asylum seekers, refugees, migrants and stateless persons, which states:
“Maximum time limits on ... administrative immigration detention in national legislation are an important step to avoiding prolonged or indefinite detention. Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”.
I am sure that I do not have remind noble Lords that we will probably have rather more people in that position as a result of Clause 60 of the Bill.
Let us put ourselves in the shoes of people who are detained. What would it feel like not knowing how long you are going to be detained? I am not surprised that it is one of the most stressful things. I think that not having that knowledge could drive people over the edge, particularly when I hear about the conditions in which some people are being kept.
The UN Committee Against Torture urged the UK to introduce,
“a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention”.
We have already heard from other noble Lords that we are out of step with many other European countries and that there is no justification for it, not only on grounds of humanity but also of effectiveness. I hope that the Minister will listen to what is being said across the House and take it away to consider a possible amendment on Report.
Lord Ramsbotham
My Lords, I will speak briefly on Amendments 17 and 19 in my name and that of the noble Lord, Lord Roberts. I agree with every word that my noble and right reverend friend Lord Harries said. Following my inspection of Campsfield after a riot there, I raised for the first time my concern about one group of people who were being held in prisons: they were to be deported at the end of their sentence.
We have been talking about enforced removals and people sentenced to be deported are enforced removals. It seems to be absolute nonsense not to process that deportation while those people are serving their prison sentences, so that at the end of their sentence they go straight to the airport and out. Instead, what happens at the moment is that they go from prison into a detention centre and then the deportation process starts. That is causing an intense clogging in the detention centres. Having disaffected prisoners awaiting deportation in a detention centre also causes unrest in the centre, which was the case at Campsfield.
Lord Judd
My Lords, last Thursday in the Moses Room we were debating terrorism. In the context of that debate some of us were raising the issues of immigration. This is a specific and good example of the danger that some of us foresee. Forgive me if I repeat a bit of what I said on Thursday. Extremists operate best in a climate of ambivalence, one in which a significant number of people—particularly young people but not only young people—are pursued by doubt. They may not like what the extremists do. They may actually abhor the actions themselves, but they sometimes wonder whether those extremists are perhaps acting on their side.
This does not create a climate in which everyone is busting a gut to co-operate with the security services. There are anxieties and doubts. Ruthless recruiters for extremism play on that kind of ambivalence. I can think of no area such as the one that we are debating that illustrates better the point that I am making. If it can be said that we have double standards of justice and that we do not live up to the ideals that we like to proclaim to the world as essential, and if it seems that freedom is not a complete but a relative principle—something that you like to apply when you can and when it is inconvenient you do not apply it—sometimes very intelligent people begin to raise queries. It does not take many people to be in such a state of anxiety and doubt for the extremists to make more recruits. It takes only a very few people in the age in which we live to do terrible things in the context of terrorist action. If we are going to win the cause of wooing people away from terrorism and extremism, it is a battle for hearts and minds. That kernel of toughness should be in all that we do. The battle for hearts and minds means that we should live up to the principles we proclaim and make them transparently clear in all the practice of policy throughout the penal system and, particularly because of the complications of international terrorism, in the sphere of migration.
I hope that when the Government consider their response to these issues they do some connective thinking and ensure that at the very time when we are desperately anxious about, for example, the implications of Syria in terms of accentuated terrorist activity, we are doing nothing that inadvertently even marginally plays into the hands of extremists.
Baroness Williams of Crosby
My Lords, I very much agree with what has just been said by the noble Lord, Lord Judd, and what was said by the noble and right reverend Lord, Lord Harries of Pentregarth.
I will be very quick because the debate is going on. It is worth remembering that in 2008 the European Commission produced a directive which said that the maximum period for detention was normally six months and that in exceptional cases 12 months could be added to that, with an absolute limit of 18 months in every single case. It is not to the great credit of our dear country that the United Kingdom and the Republic of Ireland both decided to opt out of that directive. Consequently, we, as one of the world’s oldest and most stable democracies, have to our discredit the shame of having people detained in prison conditions month after month, as the noble and right reverend Lord, Lord Harries, pointed out. We should say that the time is well over when we can continue to try to justify this kind of thing.
We could have a limited period; for example, the Federal Republic of Germany has a maximum period of two months as normal practice. We have already heard that France has 45 days. Spain has a serious terrorism problem—as serious as ours, possibly more so—yet retains two months as its normal limit. It is beyond my understanding and belief how this country has continued to leave this issue without seriously addressing it and saying that the time has come for us to opt back in to the directive and ensure that we never exceed 18 months for any case at all.
Lord Taylor of Holbeach
My Lords, the contribution of my noble friend Lady Williams of Crosby is probably a good place to start. The deprivation of liberty is a very serious matter so I will first set out the safeguards that are currently in place to ensure that detention powers are used appropriately. Although there is a power to detain, the Home Office has a policy presumption in favour of temporary admission or release. Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and my noble friends Lady Hamwee and Lady Williams.
The noble and right reverend Lord, Lord Harries, asked why we do not have a time limit on detention. That was echoed by a number of subsequent speakers. The current system is derived from case law, specifically a case called Hardial Singh. The system works well, is understood by the tribunal and other judges, and has been authoritatively restated by the Supreme Court in a case called Lumba. The system affords appropriate protections to individuals and flexibility to the Government. It is not indefinite detention: every case is carefully and regularly considered to see whether detention continues to remain appropriate. Regular reviews of detention are required to be undertaken to ensure that detention remains lawful and proportionate, and individuals can apply for bail and challenge the legality of detention by judicial review, as has been stated.
I reassure noble Lords that these safeguards are also built into the provision already included in the Bill. Clause 3 will not prevent an individual from applying for bail immediately after being placed in immigration detention. Likewise, an individual can challenge the legality of their detention at any point by way of judicial review, and legal aid will remain in place for this. The existing internal formal reviews of detention will also remain. I reassure noble Lords that detainees will have full access to legal advice.
My noble friend Lady Hamwee wanted to know more about the requirement to decide on the papers. She asked what qualified as a “material change in circumstances”. It will vary on a case-to-case basis and the tribunal will decide whether that test is met. An example could be a significant deterioration in someone’s health over a short period. The provision will not apply where there are genuine reasons to seek a further hearing because there are materially different grounds to consider. If the tribunal concludes on the papers that there are material changes that need to be considered, it will proceed to a hearing and can grant bail if it thinks it right to do so.
Noble Lords should also be aware that the Tribunal Procedure Committee has consulted on placing a time limit on repeat bail applications. The committee may have proposed implementing the requirement through the Tribunal Rules rather than in primary legislation, as here, but it is clear that repeat applications on the same facts are a concern to the Tribunal Procedure Committee.
I want to highlight to noble Lords the context of the requirement for the Secretary of State to consent to the grant of bail where removal is 14 days or fewer away. Rather than introducing a new power, the Government are clarifying existing legislation to block immigration bail granted by the tribunal, defining an existing power. Under paragraph 30 of Schedule 2 to the Immigration Act 1971, the Secretary of State can prevent bail being granted while someone is pursuing their appeal at any stage,
“if directions for the removal of the appellant from the UK are for the time being in force or the power to give such directions is for the time being exercisable”.
The Government consider that the proposal in the Bill requiring the Secretary of State’s consent to release on bail 14 days prior to removal is a proportionate approach. As I have explained, this proposal actually represents a reduction in the powers available to prevent the grant of bail. In that context, I hope that noble Lords will not feel unduly concerned about this condition.
My noble friend Lady Hamwee asked whether exercising this veto would not just cause people to seek judicial review, thereby delaying removal and creating an expense. A judicial review would not have to be pursued in-country. Removal would therefore not need to be postponed. There are obvious savings from proceeding with removal and not allowing anyone to remain in the country either in detention or on bail with conditions.
We should try to get some of these figures in proportion. Admittedly some individuals have been detained for considerable periods of time but 62% have been in detention for fewer than 29 days, and the total number of people who have been in detention for more than a year is 199. In terms of proportion, this system is therefore dealing effectively with the vast majority of detainees.
Baroness Smith of Basildon
I am grateful to the Minister for addressing the amendment, but he will know that that was not the substance of the questions that I asked. It was used as an example to raise two issues, the first being the criteria that the Home Secretary would use and the second, significantly, whether an individual who had had bail denied would be told whether the Secretary of State had overruled the tribunal judge. The amendment was just probing. If the Minister could address the questions that I asked, I would be grateful.
Lord Taylor of Holbeach
I was about to go on to develop the theme based on the noble Baroness’s example. I cannot give an exhaustive list of the circumstances where the Secretary of State might consider it right to intervene, but examples which we have already given in the statement of intent are good ones. Mental health and family bereavement are examples of such circumstances which I hope the noble Baroness will understand. We expect the power to be exercised in a relatively small number of cases.
Baroness Smith of Basildon
I think the Minister has missed the point that I made. I was probing not what the exact examples would be but the criteria that the Secretary of State would use given that she will have the ability to overturn a decision by a tribunal judge. In the other place, Norman Baker said that there were no other grounds that she would look at, yet that begs the question about it being a political decision. What grounds will the Secretary of State use if she decides to overturn the decision of a tribunal judge?
Lord Taylor of Holbeach
I hope that the examples I have given show that these are not trifling matters. Deterioration in a person’s mental health or a family bereavement are changes in the circumstances of the applicant which would mean that the Secretary of State was able to make an immediate decision without it having to go back to the tribunal for a bail hearing. This is the Secretary of State using her executive power to ensure that in circumstances where people are significantly disadvantaged by a change in their conditions the matter can be resolved. If the noble Baroness wishes me to elaborate further, I shall do my best to explain it to her in writing so that she has something more positive than just a few scattered notes from which I am addressing her.
Amendment 19 would have the effect of creating many unnecessary bail hearings in the tribunal, increasing the inefficiency and complexity of the system. An individual can still apply for immigration bail at any time or challenge the legality of their detention by way of judicial review. A significant number of individuals are released on bail by the Home Office without the need for a bail hearing—we have just heard examples of why that is so—and so to mandate a requirement in primary legislation to require bail hearings to take place will unnecessarily increase the number of hearings and will slow the system and add complexity.
Amendments 20 and 21 would make two changes. First, they would limit judicial discretion to maintain detention of those who are suffering from mental health concerns or of those who are under 17 where the judge considers immigration detention remains appropriate for their own or, in the case of those with mental health concerns, others’ protection. Secondly, the amendments would remove the requirement for repeat applications made within 28 days of a previous application where there has not been a material change in circumstances, made under the bail provisions in Schedule 2 to the Immigration Act 1971, to be decided without a hearing.
Published guidance provides that certain categories of people are considered unsuitable for detention in the first place unless there are very exceptional circumstances in play. Unaccompanied young people under the age of 18 and those suffering from serious mental illness which cannot be satisfactorily managed within detention are specifically listed as case types that should be detained only in very exceptional circumstances. However, there will always be cases with very exceptional circumstances which mean that detention is appropriate. An example may be when it is necessary for detention to continue while an individual is being or waiting to be assessed or awaiting transfer under the Mental Health Act. We may also need to hold unaccompanied children where, for example, it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period either on arrival pending collection by social services or when we are trying to remove them. In any decision to hold an unaccompanied child, we will consider our duty to safeguard and protect the welfare of children.
The noble Lords’ amendment would prevent a judge in a bail hearing from considering if very exceptional circumstances are in play and would require judges to release individuals even where there is the real possibility that this will put them into a more vulnerable situation or where they clearly pose a threat to themselves or others. Amendment 21 seeks to remove the requirement for the Tribunal Procedure Committee to change the rules to require repeat applications to be disposed of without a hearing, thus undermining the Government’s proposals. It would also allow the current inefficient bail processes to remain in place.
However, I have listened to the points made by noble Lords in this debate. It has been a good debate about a very important aspect of the provisions of the Bill. I will consider those points before we return on Report. In the mean time, I ask noble Lords not to press their amendments.
Baroness Hamwee
My Lords, other noble Lords have spoken very effectively about the impact of detention. I will just mention again the first of the amendments in this group, which is on the presumption of liberty. As we heard, a presumption of liberty is already something that judges would consider almost automatically as a matter of instinct. Of course, the drafting of the amendment could be tweaked but we are only at Committee stage. However, subject to reading Hansard and the Minister’s confirmation that the Government will consider the points before the next stage—I know he made no commitment and I would expect no less of him than that he would consider what has been said—I think that a presumption of liberty is so important that is should be in statute. Guidance can be changed. I would like to see the matter put absolutely beyond doubt. I appreciate that the amendment might have elephant traps in it—amateur amendments sometimes do. Of course, at this moment, I beg leave to withdraw the amendment.
Lord Rosser
Clause 5 amends Schedule 2 to the Immigration Act 1971 to include persons who are “liable to be detained” as being persons in respect of whom steps can be taken for the purposes of identification, such as fingerprinting and photographing. We put down this question on whether the clause should stand part and Amendments 22 and 25 to raise some questions about how this clause will be implemented and why it is considered necessary, not because we are opposed to the use of biometric information or its provision by various people.
It would be helpful if the Minister could indicate what individuals, circumstances or situations would be covered by the words “liable to be detained” that are not currently covered by the existing legislation, including the Immigration Act 1971. It is perfectly reasonable to verify the identity of someone who is detained. The law provides for that to enable us to address the issue of, for example, dealing with people suspected of being in this country illegally. In that situation, the immigration officer can, for example, check the person’s fingerprints either with that person’s consent or following their arrest.
Baroness Hamwee
My Lords, when I looked at Clause 5—“detained” or “liable to be detained”—the question that arose in my mind was, “How do you know someone’s liable to be detained unless all the processes including any appeal rights have actually been pursued?”. I have two amendments in this group. Amendment 23 would leave out the second part of the new subsection (1A) introduced by Clause 8. The provision in Clause 8 is that biometric information means,
“information about external characteristics (including in particular … )”.
Paragraph (b) then refers to,
“any other information about a person’s physical characteristics”.
Well, what could those be if they are not the external physical characteristics in subsection (1A)(a)? I cannot imagine that they are internal physical characteristics. I am quite confused about what subsection (1A)(b) might mean when read with subsection (1A)(a). That is quite apart from the fact that I have a rather natural and automatic dislike for not spelling out on the face of the Bill anything that could be spelled out.
Amendment 24 would take out of new Section 8(3)(c) introduced by Clause 10 the reference to “injury”. We are told in subsection (3) that the regulations may include provision to be used for certain purposes, of which paragraph (c) is,
“in connection with identifying persons who have died, or are suffering from illness or injury”.
I assume, and I hope the Minister can confirm this, that the reference to death or illness is because of public health considerations. Why then is it necessary to refer to injury? I would be interested to know what purpose this is to serve.
Earl Attlee
My Lords, Clause 5 amends paragraph 18 of Schedule 2 to the Immigration Act 1971 to include persons who are liable to be detained. This will allow immigration officers to check the fingerprints of persons they suspect to be illegal immigrants where there is a question about their identity. The existing power allows for fingerprints to be taken only from persons who have been detained under immigration powers.
The ability to establish an identity is an essential requirement for immigration officers when undertaking immigration enforcement operations. Unless identity is established it is not possible to remove or deport illegal immigrants. At present, where immigration officers encounter people whom they suspect to be illegal immigrants and have doubts about their identity, they can check the person’s fingerprints only with their consent or following the person’s arrest. In some instances this can lead to unnecessary arrests or result in illegal immigrants not being detected. In answer to the noble Lord, Lord Rosser, surely the Committee does not want innocent people going about their lawful business to be arrested. Secondly, if the suspect does not appear to understand English, how can they give informed consent to have their fingerprints taken?
This power is intended to reflect the conditions under which the police operate. Prior to the changes made to the Police and Criminal Evidence Act 1984 in 2005, the police also needed consent to check fingerprints where a person had not been arrested. The amendment has enabled the police to make fingerprint checks without the need to arrest individuals who are suspected of committing a criminal offence and whose identity might otherwise not be readily ascertained or verified.
This clause will bring immigration officers’ administrative enforcement powers more into line with police powers. The power to check fingerprints will be limited to the purpose of verifying identity as part of an immigration enforcement investigation. The fingerprints will not be retained but rather immediately electronically checked against the immigration biometric database. If there is an existing record, this will confirm the person’s identity and potentially assist the immigration officer to ascertain the person’s immigration status. This will help avoid unnecessary arrests, allowing those legitimately in the UK to go about their business, while quickly identifying illegal immigrants.
I want to assure noble Lords that this power does not mean that immigration officers will be able to stop anyone they encounter. The person required to provide fingerprints for checking must be liable to detention under the immigration Acts. In practice this means that the immigration officer must have reasonable grounds for suspecting that they might be liable for removal from the UK. There will not be any blanket testing of people just because they look foreign. I hope that answers the question from my noble friend Baroness Hamwee about the term “liable to detention”. As I understand it, it is not a new term.
Clause 6 is intended to improve the levels of assurance about persons naturalising or registering as British citizens and to ensure that the identity of British citizens who apply for their first UK passport can be properly identified. Amendment 22 would weaken these proposals.
The power is intended to protect new British citizens from having their identity stolen by impostors by enabling a photograph submitted as part of a passport application to be checked against the new citizen’s record. If we destroy new citizens’ photographs before they obtain a passport, HM Passport Office would be less capable of confirming their identity. It would also expose HM Passport Office to fraudulent applications for British passports.
As observed by the noble Lord, Lord Rosser, over 90% of new British citizens make a passport application within one year, so very few new citizens will have their photograph retained for more than a year. I accept that this will result in a small minority of new British citizens who decide against applying for a British passport having their photograph retained for a longer period as a consequence of these provisions. However, retaining the photograph will be useful to them in protecting their identities. In particular, new British citizens who retain their other nationalities may opt to have a certificate of entitlement affixed to their non-British passport instead of obtaining a British passport.
This document is a right of abode vignette—passport sticker—that can be issued to, in addition to British citizens, certain other categories of Commonwealth citizens who have a right of abode if they have not ceased to be Commonwealth citizens. It contains a photograph of the holder, which needs to be checked against the photographs that the person may have previously submitted as part of an immigration or nationality application. Holders of valid certificates of entitlement are not allowed to hold a British passport at the same time.
Baroness Hamwee
My Lords, with regard to Amendment 23, the Minister is of course right that there is a reference further on in the new subsection that refers back to what I was seeking to take out, so my amendment is not complete. However, by mentioning that, he has drawn my attention to something else that I would like to pursue. New subsection (1B) says that an order under paragraph (b), which is about other information subject to an order by the Secretary of State,
“may specify only information that can be obtained or recorded by … external examination”.
That raises the question of whether only external examination can be used for new subsection (1A)(a), concerning,
“information about a person’s external physical characteristics”.
Perhaps he can confirm that there can be only an external examination to obtain information about the first limb in (1A).
The Minister talked about new technology, which I assume comes within the word “information”. My concern was to understand what physical characteristics there might be that were not included in (1A)(a). I accept that technology will advance, but it is what the technology is being used to identify and gain information on that concerns me. This may sound tedious but it is actually quite important. I do not know whether he is able to take the matter any further tonight; if not, I would be glad to pursue it after this stage.
Lord Rosser
Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.
I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.
Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.
Earl Attlee
My Lords, the main justification for Clause 5 is to avoid unnecessarily arresting people and to make it easier to carry out immigration checks. I described a situation where someone cannot speak English or pretends not to speak English. The noble Lord, Lord Rosser, asked what the definition of “liable to be detained” is and how many cases it will affect. If I have any information about how many cases, I will write to him. A person is liable to be detained if there are reasonable grounds for suspecting that removal directions may be given—that is, that the person requires leave to enter or remain but does not have it.
The noble Lord, Lord Rosser, also asked whether a person who refuses to give their prints can be arrested. They cannot be arrested solely for refusing to give fingerprints, as they can be taken only by consent. This may not give enough reasonable suspicion that a person may be an immigration offender.
The noble Baroness, Lady Hamwee, asked about the external examination. The whole point of these provisions is that the checks can be external examinations only.
Lord Rosser
Presumably immigration officers would not want to check a person’s fingerprints unless they had some suspicions in the first place or some doubts.
Earl Attlee
My Lords, they would not be able to check fingerprints unless they had some good reason to do so.
Lord Rosser
I thought the Minister said that you cannot arrest someone who refuses unless there is some suspicion. To do the check in the first place must mean that you have some suspicion and, therefore, if they refuse, you could arrest them.
Earl Attlee
My Lords, there would indeed be an element of suspicion if someone declined to give their fingerprints to be checked, but I suspect there would have to be other evidence as well. I will write to noble Lords to clarify these points.
Baroness Hamwee
Will the Minister include an explanation of the statutory basis on which new subsection (1A)(a) can be obtained by external examination only? I do not doubt what he says, but the way the provision is worded raises the question.
Lord Hannay of Chiswick
“(d) P is registered in full time undergraduate or postgraduate study at a recognised higher education institution”
Lord Hannay of Chiswick (CB)
My Lords, Amendment 26 covers ground similar to that covered by an amendment much later in the proceedings, Amendment 49, which we will not be dealing with tonight. Amendment 26 is about appeals and seeks to remove from the scope of the Bill appeals by undergraduate or postgraduate students in full-time study at a recognised higher education institution.
Why am I moving this amendment? There is much common ground with the Government about the important role that the higher education sector plays in our economy and, above all, that our universities play in our economy. It is a massive benefit to this country. It accounted for £10.1 billion of invisible exports at the last time of asking, and that figure is rising and should continue to rise. It is also common ground with the Government and with those in the university sector—I declare an interest as I sit on the council of the University of Kent—that we want to see those student numbers increasing. Last July, the Government published a strategy for international students, and in it they foresaw a steady increase in the years ahead. They hoped for some 15% in the next few years.
There is also the less tangible aspect of the benefits to this country from postgraduate and undergraduate students, which is called “soft power”. When they have qualified, these students very frequently go back to their countries and retain very strong links with this country, often doing much business with our exporters, and are thus generally very positive. That is the good news.
The bad news is that the Government’s immigration policy is cumulatively hamstringing this vital invisible export industry. That is before the measures in the Bill, several of which are likely to be quite damaging, have taken effect. This cumulative effect is now under way, and if you ask me whether these concerns are well founded, the most recent figures produced by the Higher Education Statistics Agency in January 2014, which cover the last academic year for which there are figures—2012-13—are disturbing indeed. Those figures are before the cumulative effect that would come from this Bill because, of course, it is not yet in force.
I shall not go into too much detail on the figures, because there was a good deal of coverage of them at Second Reading, but some really stand out. The main one is that in the year 2012-13 overall numbers dropped for the first time since figures were produced in the early 1990s. They dropped by 1%. More seriously, perhaps, the figures for postgraduates—and postgraduates from countries outside the EU are extremely important for the future of our universities—dropped by 4%. Some of the figures for the countries of origin of large numbers of students coming to this country are really terrifying. The figure for India dropped by 49% in two years, and there are very substantial drops in the figures for those from Pakistan and other countries of the Indian subcontinent, Nigeria and so on. That is in a period when the figures for our main competitors—the United States and Australia—were going up, by 7% for the United States and 6.9% for Australia. The market is growing, we are losing market share, and that is not good news for this country.
In addition, I suggest that Ministers look at a recent study conducted by the National Union of Students, which it made available to those of us who are interested in this matter, and which was based on 3,000 students from outside the EU currently studying in this country. They were asked in January of this year about their reaction to certain matters. That, too, was not very comforting. The chilling effect that the Government’s immigration policies are having and are likely to have was very clear: 51% of those non-EU students found the UK Government’s attitude towards them “unwelcoming”. Has the Minister studied this survey by the National Union of Students? These people have no particular interest in the matter, because they are here already. However, they said in much larger numbers than that 51% that if they had been asked to undertake some of the burdens in the Bill, they probably would not have come; they would have gone somewhere else.
The question is: why not carve students out of the Bill? There is no requirement for the Government to include students in the Bill for public policy purposes. I accept that the Government have to make a return on economic migration to the UN, which has to include students as well as those who are more properly regarded as economic migrants. However, there is no need whatever for the Government to apply their immigration policy, these new measures, to students because they are economic migrants; of course, they are really not. These people bring to this country very large resources, to which I have already referred: £10.1 billion net in the course of the most recent year. They bring jobs to this country because they are creating employment in our universities. The study by the University of Sheffield, of which I am sure Ministers are well aware, shows just how much of a contribution they make to the economies of many of our university cities and towns.
Why are the Government not therefore prepared to listen to the views of four or five—I cannot remember the exact number now; it goes up all the time—Select Committees which have all said, “Please do not treat students, for public policy purposes, as economic migrants, because you are damaging a resource vital to this country”? I hope that the Government will reflect further on this and will see the advantages to them and to the whole country of simply removing them from the Bill. I hope we will then all be able to work together, which is what universities want to do. Those of us who work for universities want to see a buoyant, increasing number of students, undergraduates and postgraduates in full-time education, coming to this country and bringing huge benefits to us.
Baroness Lister of Burtersett
My Lords, as a member of the Joint Committee on Human Rights, I speak in particular to Amendment 27. At Second Reading, the Minister included in his list of myths surrounding the Bill that it undermines access to justice. The Joint Committee therefore looked again at this question. As the Minister may be aware, we published a second scrutiny report today. We write:
“We have considered carefully the Government’s argument that the right of effective access to a court or tribunal in immigration and asylum cases will be preserved by a combination of the continued availability of full appeals in cases concerning fundamental rights, the new system of administrative review, and the availability of judicial review, and its argument that the practical effectiveness of judicial review will not be affected by the proposed reforms to legal aid and judicial review itself. We do not share the Government’s confidence”.
We go on to say:
“We have already reported our concerns about the implications of the proposed residence test on effective access to justice. We have also inquired into the Government’s proposed reforms to judicial review and we will be reporting our conclusions in due course. For present purposes it is sufficient to say that, while we accept that it is a perfectly legitimate objective for the Government to seek to reduce the risk of unmeritorious claims being brought, we do have serious concerns about the effect of some of the Government’s proposed judicial review reforms on the practical ability to bring meritorious challenges to decisions, including in the immigration and asylum context … We also draw to Parliament’s attention the paradoxical fact that after years of seeking to reduce the number of immigration and asylum judicial review cases that have been causing backlogs in the High Court, including by transferring such cases from the High Court’s jurisdiction to the Upper Tribunal, the Government is now seeking to justify a significant reduction in appeal rights by reference to the continued availability of judicial review … In light of our concerns, we recommend that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently to remove the risk that meritorious appeals will be prevented from being brought”.
In other words, we express the spirit of Amendment 27.
Going beyond that, and speaking in a personal capacity, I also support my noble friends in their opposition to the question that Clause 11 should stand part of the Bill.
Baroness Smith of Basildon
My Lords, I speak to our Amendments 27 to 29, and to the question that the clause stand part of the Bill. We have heard examples from the noble Lord, Lord Hannay, and my noble friend Lady Lister of why we consider this clause one of the most controversial in the Bill.
The Government have made it clear that the clause reduces the number of immigration decisions that can be appealed from the current 17 to just four. Only three types of decision will remain appealable: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information could not be challenged before a tribunal. Instead, the Government’s plans are that an administrative review system be set up to, according the Government’s fact sheet on the clause,
“provide a proportionate and less costly mechanism for resolving case working errors”.
We can all sign up to a process that gives timely, accurate decisions with a swift process to address any errors. However, taken in context, that is not what this clause does. We have therefore tabled a number of amendments, and have given notice of our opposition to the clause standing part of the Bill. Often, clause stand part debates are used as a kind of probing amendment, a technical way of ensuring discussion on the principle of the clause or an attempt to tease out the detail and address questions. We will be doing that with this clause. However, I also say to your Lordships’ Committee that removing the clause entirely would be our preference given the current position. Failing that, our Amendment 27 would ensure that appeal rights could not be abolished until the quality of Home Office decision-making for managed migration is deemed by the Independent Chief Inspector of Borders and Immigration and the Secretary of State to be efficient, effective and fair. That would require that the provision be introduced by order subject to affirmative procedure; that is also the position of the Joint Committee on Human Rights.
We have also tabled Amendments 28 and 29 to introduce two new clauses. Amendment 28 would require the Secretary of State to undertake an impact assessment before being able to commence the clause. The issue of students, as raised by the noble Lord, Lord Hannay, would be relevant to Amendment 28. Amendment 29 would require the Secretary of State to undertake a review of the number of people successfully deported within a calendar year of a decision under Clauses 11 to 14.
We have tabled those amendments because of deep concerns about the clause. Our country has one of the most highly respected judicial systems in the world, and the right to appeal is a fundamental principle of British law. There can be few decisions more important, or which have a greater impact on an individual or community, than who is able to live here. These are decisions of life and livelihood which affect families, communities and, potentially, businesses and employers.
The noble Lord, Lord Hannay, has highlighted the situation with students. Other noble Lords are concerned about the position of families and children. However, we are looking at the wider concerns and principles raised by the Bill. The evidence, and the impact on businesses and the economy, make it very important that we get these decisions right. It is right that such a decision should be challengeable and that recourse should be available.
Lord Maclennan of Rogart (LD)
My Lords, I wish to support the arguments put forward by the noble Lord, Lord Hannay, by recalling two anecdotes. He very forcefully and persuasively deployed the arguments about students from abroad, external to the European Union, coming to this country. One anecdote is about when I visited Tanzania with the late George Thomson and met Julius Nyerere. He had studied in a university in Britain and had translated Shakespeare’s plays into Swahili. The ties with Tanzania were greatly fostered by that personal encounter at a particularly difficult time when we faced apartheid in South Africa.
The second anecdote relates to a visit I paid to Hong Kong some years later when I met the director of development and housing, who had also been to a British university. When I inquired about who were the construction engineers developing various important developments in Hong Kong, virtually every single one of them was British. I think that reflects the truth of the general principle that we should encourage people from overseas to come to this country as students not only because of the money they pump into our education system, but also because of the long-standing ties that they foster when they go back to their own countries.
Lord Lea of Crondall (Lab)
My Lords, I support the first amendment in this group, in the name of the noble Lord, Lord Hannay, for the following reasons. Each Bill introduced into Parliament has an impact assessment. I have considered the methodology of the impact assessment for this Bill. It refers to costs and benefits, but I think there is a fallacy built into the methodology. The section on employment and monetised benefits states:
“There may be additional employment opportunities for UK residents”.
This must be based on an extraordinarily narrow focus, even if it is not economic sense, to say that employment opportunities will be opened up for UK residents. It sounds like a bit of UKIP propaganda to me; I cannot see how the rationale for it works.
Why is this important? It is important because it is a long way from the sort of impact assessment to which the noble Lord, Lord Hannay and others, including the noble Lord, Lord Maclennan, have alluded. If, for example, we were to see a catastrophic fall in the subcontinent, are we seriously suggesting that the impact assessment on UK plc national income over the next generation would be zero? Of course it would not be zero; it would be negative. It is unacceptable that the impact assessment can be framed as narrowly as this.
In this regard, I ask the Minister to do two things. One is to revisit the impact assessment and to at least have a go at the wider context. The analogy that crosses my mind is that 10 or 15 years ago we could have said that we did not need to spend any money on Heathrow Airport because aeroplanes could land there and if there were a few more in the next year that would be fine, failing to see that our market share in Europe, compared with Charles de Gaulle, Frankfurt and Schiphol, would now be in a state of crisis, unable to serve all the places in China, for example, that can be served by these other airports.
Secondly, I ask the Minister to do a survey, and to put it in the Library, of the situation in other EU countries. We are talking about a distinct group, non-EU students coming into the EU, and although we control our own borders, at least to some extent—obviously not with the EU—we are not covered by a common external immigration policy. I am not suggesting that we should be. I am suggesting that we do a benchmark study. Australia, the United States and possibly Canada are the only countries that have been mentioned so far: the “white Commonwealth”, as it was once called. However, it is important to know what the practice is on this question of students in the other EU countries. Do they have to deal with the fearful rigmarole that we are confronted with here? Is the damage to Britain’s reputation part of the cost-benefit analysis? Of course it is not. I have great sympathy for the civil servants trying to do these cost-benefit analyses in so many fields nowadays. With HS2, can you actually look at the cluster effect on Manchester and Leeds and so on in the north of England? Possibly not, because it is very hard to do. It is very hard to quantify the cost benefits for that, and civil servants would get no extra brownie points for introducing, alongside key monetised benefits, things where it is difficult to monetise their value.
In conclusion, will the Minister agree with me, and with the spirit of what has been said by many noble Lords, that one cannot look at an impact assessment in the narrow terms on this rather thin piece of paper that I have here, which it is probably obligatory on Whitehall to use? Will he agree to look into the two matters that I have specifically asked about? This involves our world market share in so many areas, and that concerns the future of our country. Some might say that this is missing the point and that the point is to reduce the number of overseas students. I ask the Minister if it is outrageous to suggest that the policy is to reduce the number of overseas students, the rationale being that statistically they pose more potential danger to the country. We must spell this out. Before Report, there is scope for these matters to be teased out a lot more than they have been so far.
Baroness Hamwee
My Lords, I have Amendment 80 in this group. I was prompted to table it following the discussions to which I have been party about the importance of students to this country.
While entirely agreeing with the thrust of what has been said so far, I have concerns about Amendment 26. It would have the effect of excluding—or including—a particular group that would retain a right of appeal. The new Section 82(1) would allow appeals by individuals in certain circumstances, but the noble Lord’s amendment would allow all those to whom he has referred—essentially all students—to retain the right of appeal. Students and universities are an obvious, vocal and important cohort. They have a voice that others affected by Clause 11 do not have. There will be individuals who are substantially affected as individuals, over a range of circumstances and issues. I would be concerned about picking out a single group for whom to retain a right, without considering carefully what that would say to all those other people who will be affected by this clause. There may also be practicalities which I shall not go into.
The noble Lord, Lord Hannay, said that many of our committees have said: “Please treat students not as economic migrants”. I do not doubt what he said but wonder whether we are being asked not to treat them as economic migrants or not to regard them as economic migrants. They may have slightly different meanings. However, I am absolutely convinced of the importance of the international links to which my noble friend Lord Maclennan referred. I am concerned about all the reputational issues for the UK that would flow from perceptions—we may be told that they are only perceptions but they are important—if we were thought not simply to accept students but to welcome them and seek for them to come here.
I am also concerned about what seems to be a lack of good marketing. We are told by the Government that students are welcome, but there is a problem in terms of promotion. Therefore, given that so much of the debate is actually about the number of immigrants and including students in total immigration figures, it would be right to pursue the issue regarding the number of students. We should seek not just to disaggregate the numbers, because I understand that that is done at the moment. However, that issue gets no coverage. We should be taking positive steps to make sure that it is understood how the numbers break down and that we do not prejudice ourselves by including student numbers in the total numbers and then finding that for whatever political reasons there is a target for reducing the total numbers, and the students get swept up in them.
I appreciate that there is the UN obligation and that the numbers are dealt with by the ONS and it is, in a sense, not up to the Government to publish separate figures. I know that those figures are there but they take a little seeking out and certainly do not get the promotion and exposure that they would if we were to have a debate based properly on numbers, rather than a debate that is based to a large extent on prejudices.
My Amendment 80, to which my noble friends Lord Clement-Jones, Lady Brinton and Lady Benjamin have put their names, would provide for an annual report by the Secretary of State on study-related immigration. I am sure that the amendment, which very much has amateur drafting, is riddled with technical flaws but its thrust is that we should be able to see annually,
“the number of applications to enter the United Kingdom on student visas”,
the number of applicants who actually come in on those visas, the number rejected, and an estimate of the number of people who have held a student visa who have left. We will, of course, be considering the issue of embarkation checks at the end of the Bill but one of the big holes in all the consideration of these issues is that we do not know who has gone. We also need comparative figures for other managed migration. We need this information in order to thoroughly understand what is going on. The lack of understanding is feeding a position that is entirely unhelpful.
The noble Baroness, Lady Smith, spoke to amendments regarding appeals and mentioned the proposal for an administrative review. I have an amendment on administrative reviews but it is not in this group and we will come to it on Wednesday.
Lord Tugendhat (Con)
My Lords, I very much agree with everything that the noble Lord, Lord Hannay, said and I am delighted that my name should be attached to his amendment. I shall not therefore repeat his powerful arguments but should like to add just one further thought.
As everyone in this House knows, the United Kingdom is second only to the United States in terms of the number of universities that it has in the top group of the world’s universities, not just in absolute terms but in all kinds of important subject areas such as engineering; figures last week showed that Cambridge, Imperial College and Oxford were still in the very top group. That was as much as the rest of Europe put together was able to provide.
There are many reasons why British universities are in the top group of world universities but one is that there is a free market in talent that enables them to attract it from all over the world, not only in the students but in the teaching staff. To some extent, there is a chicken and egg factor here. They are great universities partly because they can attract talent from all over the world, and because they can attract that talent they remain very good universities.
There is a similarity between the university world and financial markets. Neither of them is purely national. Both are totally international with seamless connections across the world. Therefore, if you try to turn us into an island and cut us off from this stream of talent that is crossing the world, you will do great damage to British universities. It will not show up in the short term, as the noble Lord, Lord Lea of Crondall, just pointed out. These things take a long time to show through. But it will very seriously damage over the long term the ability of the greatest British universities to remain in the top group—and not only them. For 15 years, I was chancellor of the University of Bath, a university that was founded less than 50 years ago. This has nothing to do with me because the outstanding vice-chancellors that it has had deserve the credit, but in the past 20 years the University of Bath has moved from obscurity not only into the top group in the United Kingdom but now into a number of world league tables as well. That is because it has both a student body and a faculty that are drawn from all over the world. In fact the previous vice-chancellor was American. It has had people from the Far East, North America, South America and all kinds of places.
I beg Ministers to consider the fact that clauses such as this one that we are seeking to amend have a deleterious effect on the ability of British universities to perform adequately on the world stage. We do not have so many institutions, so many industries and so many spheres of our national life that are indubitably regarded as absolutely among the best in the world. Universities are one and it would be extraordinary to kick them in the shins.
Lord Hope of Craighead
My Lords, I endorse what the noble Lord, Lord Tugendhat, just said and what the noble Lord, Lord Hannay, said earlier. My background is that I was for 17 years chancellor of the University of Strathclyde in Glasgow. Our experience has been that we are operating in a global market not only for teachers but for students—those coming to the university and those going out from the university to other countries to take on part-time study or study together with employment experience.
There are a number of aspects that I might very quickly mention one after the other. The first is the point that the noble Lord, Lord Hannay, made about the cumulative effect of policies that have been building up over the years. One of the most injurious in our experience has been the inability of foreign students to stay on after they have completed their degree courses. I know that there is strong feeling in government that we have a policy about people who stay on who should not do so. These are people who in the previous system were able to remain here for a given period. They used that time to gain work experience in some of our leading companies. Together with their academic work, they took that back to their own countries, developed their own expertise and thereby maintained a continuing link not only with the universities but with the companies with which they worked. That has gone. We are not talking about that in this Bill, but it is against that background that this has become a much more serious issue. The noble Baroness made the same point. We have reached a point where we are losing contact and the competitive edge that we must maintain if our universities are to remain as competitive as they are in the world.
The second point is about revenue, which the noble Lord, Lord Maclennan, made. Certainly, our experience when we were getting students from India and China was that they were paying substantial sums to come to the university, and we are losing that. I am told that there has been a 25% fall in students from these countries coming to Strathclyde for postgraduate degrees. That is a drop in numbers that is difficult to make up for in the market in which we work.
The other aspect is the exchange process whereby our students go away in the course of their studies for a year out. Because we are driving away international students from elsewhere, it is more difficult for us to get places for our students to go to.
The final point is that one of the essences of university is the ability of students to mix with each other, gain experience from what other people have done and make friends across the faculties and across the nations throughout the world. The opportunities for doing that will be diminished if we do not sustain our effort of attracting students from other countries from outside the EU who have so much to contribute. Therefore, I warmly endorse the amendment moved by the noble Lord, Lord Hannay.
I should add, in response to a point made by the noble Baroness, that I believe it is a very carefully crafted amendment because it is seeking to direct attention to a very particular category. Those are the categories described very precisely in the amendment, which is the point that I and, I suspect, the noble Lord, Lord Tugendhat, have addressed. It is a very particular category. It does not include language schools and all the other fringe elements, which might give rise to abuse. These are people who would be here for very good reasons, carefully monitored, and would take enormous benefits back to their own country if they were allowed to continue to come here.
The Lord Bishop of St Albans
My Lords, if I may, I will just add a brief comment on precisely that amendment. Some years ago I spent time in Malaysia and found myself meeting a number of barristers, all of whom had trained in this country. They spoke of how, when they had particular legal problems or needed advice, they would immediately turn to the people they had studied with back in this country. However, they were lamenting the fact that in recent years the next generation were all being trained in Australia and America and, of course, the place that they immediately contacted when they wanted help was their friends in those countries. They thought it was the most extraordinarily short-sighted approach compared with the way things had formerly been done.
I will add one other thing. Just three or four weeks ago, I paid a visit to one of the universities in my diocese, the University of Bedfordshire, and I met Bill Rammell, who had recently come there as the vice-chancellor. Immediately when we got talking, he lamented the very serious problem they have now of finding perfectly good students who want to come but are simply already unable to come. He was saying that this is something that is materially affecting Bedfordshire as one of our dynamic, thriving universities, which wants to be right at the forefront of forming, developing and, indeed, celebrating an international academic community, but it is finding that already it is difficult. Therefore, I want to add my support for the amendment.
Baroness Benjamin
My Lords, I rise to speak to Amendment 80, to which I have put my name, as I believe we need to find a sensible way forward to deal with the international student figures. International students make up less than 1% of the UK population, yet their spending power supports £80 billion-worth of UK economic output. International students support over 830,000 UK jobs across the country, including in Wales and Scotland. Interestingly, they are the most heavily regulated and monitored and are subject to strict visa controls. Yet there are proposed processes being considered here in this House that will deter many potential international students from choosing the UK as the place to study. This worries me greatly, as I speak as chancellor of the University of Exeter—I declare an interest.
This is why I support Amendment 80, which my noble friend Baroness Hamwee has spoken so eloquently on. I believe this is a common-sense way forward that deals with this important issue, and highlights international student numbers in a coherent and sensible way to show them that they are not perceived as the enemy and that they are wanted and welcome. It will ensure that the Government will know that, if there are any concerns detrimental to our country, they will know exactly where the problems are if there are any. Therefore, I hope that my noble friend the Minister will give careful consideration to Amendment 80. I look forward to his reply and will accept nothing less than a compromise.
Baroness Williams of Crosby
My Lords, the hour is late and there is much to say, but I will be brief in my remarks. Let me begin by declaring an interest as a member of the court of the University of Hertfordshire, which is very like what the right reverend Prelate had to say about the University of Bedfordshire—a very young, growing but exciting and expanding university in a part of the world which, rather surprisingly, has not got as many universities as exist around Oxford and Cambridge and London.
Let me be quick and say the following. I would like first to add one other distinguished name to the list given by my noble friend Lord Maclennan. It is a name worth thinking about for a moment, and it is of course that of the new President of Iran. He holds a postgraduate degree from Glasgow Caledonian University, and one has to ask oneself whether his much more enlightened view of global relationships has nothing whatever to do with the fact that he is one of the very few senior figures in Iranian society who has spent substantial time outside his own country, speaks good English and is interested in what is happening elsewhere. That is the kind of benefit, one which cannot be listed economically, that a country like ours gets from the very wide spread of its students from all over the world who, over the last generation, have attended universities in this country. Out of that has grown an abiding affection both for their university and for the country in which it happens to be located.
Let us be honest: there is a profound division of opinion within the Government on this issue. We all know that the department for business enthusiastically supports the idea of a substantially greater expansion of British universities. That department includes some able Ministers with considerable knowledge of higher education, and it knows one important thing. The important thing that it knows is that you can grow out of a university relationship a whole range of relationships with other businesses, public services and so forth across the front. The noble Lord, Lord Tugendhat, pointed to the effect of this kind of relationship on global attitudes. It allows us to extend our acquaintances and friendships all over the world.
I shall put this very particularly because the noble Lord, Lord Hannay, said something less dramatic than I am about to say. He pointed out quite rightly that the National Union of Students study, based on a careful poll conducted at the end of last year of more than 3,000 students in this country, is the best figure that he could get; it is a figure showing what undergraduates think. Some 51% of undergraduates have said that they think that this country is not welcoming to overseas students. The more drastic figure—more drastic for the reasons given by my noble friends Lady Hamwee and Lady Benjamin—shows that 66% of postgraduate students, people who have spent some time studying here, take the view that this country is unwelcoming to overseas students. These are the very men and women to whom the noble Lord, Lord Tugendhat, was referring when he talked about relationships with scientific, medical and cultural groups in this country. They have a valuable contribution to make, but increasingly they are being somewhat frozen out.
One of the worst examples of this is the playing around with visas, which means that students suddenly find themselves without a visa a matter of months before they are due to start their course, and no one repays them for the work they have done to get that visa in the first place. British visas are among the most expensive to be found in any country offering higher education in the whole of Europe. Our visa expenses are something like three or four times higher than those of our major competitors. Now we are going to add to that cost health surcharges, decisions about tenancies and a whole range of things, all of which are off-putting and not welcoming. I agree with my noble friend Lady Hamwee that this country has to make a great effort to retain this huge asset value in one of the few areas in which we still lead the world. It is to my mind almost totally irrational to make it harder and harder for our most effective industry, that of higher education, to expand, grow, root itself and be there for the distant future.
The reason for all this is that we have become so obsessed with immigration numbers that we can no longer see the larger picture. The great bulk of students, over 95%, who come here to study go back to their own countries, having fostered friendships and relationships with us. I shall give only one example before I stop. In this country we suffer considerably from a long increase in waiting times for people getting into, for example, A&E to look after accidents and injuries that they have. We used to have a substantial number of junior doctors serving in A&E, particularly those who came from countries like India, but elsewhere as well, who gained great knowledge of medicine and of our hospitals and made a huge contribution to a National Health Service that ran smoothly. Increasingly, those numbers are no longer there. In two years’ time we shall see A&E waits rise, and we shall ask, “How did this come to happen?”. The answer is right here and now. It comes to happen if we turn off the young medics who would like to come here, who would like to learn about how we work and about how our health service works and then go back to their own countries and spread that knowledge more widely.
So I end simply by saying that we have a profound schizophrenia in this country on this issue. I do not understand why it is not clearly seen to be of such advantage to us, to our own people and to those who come. We do not recognise that we should have the strength to face up to looking again at this extraordinary conflict that we look at all the time between different departments, different people and different individual political attitudes. We should look at it and say to ourselves that this is something that we do very well, something for which we have been admired, something which benefits the world and benefits us, and decide to get on with it and make our universities the core of one of our most rapidly rising and highest reputation industries.
Lord Clement-Jones (LD)
My Lords, I shall briefly add my support to both Amendment 26 and my noble friend’s Amendment 80. The fact is that overseas students are temporary migrants. They should be both treated and reported differently. These two amendments reflect that approach.
This debate is very timely. Last week, the net migration figures were published and none of the media coverage disaggregated the figures. I do not know what the Government’s original press release stated, but it seems that by publishing in that form they are simply creating a rod for their own back. Amendment 80 at least is an attempt to make sure that for some purposes, the student visa figures are clearly and publicly disaggregated.
The obsession with the original pledge to reduce net migration to tens of thousands seems to me and to many others in the university sector to be totally counterproductive in terms of its impact on our ability to attract foreign students. I and many others made clear on Second Reading that we are in danger of an adverse impact both in economic terms and in terms of the soft power to which the noble Lord, Lord Hannay, and my noble friend Lord Maclennan referred. As we heard from the noble Lord, Lord Hannay, the total number of international students coming to the UK fell for the first time last year.
The number of voices that we have heard over the past two years, not just in this House, has been legion in that respect. In 2012, 68 representatives of universities wrote to the Government urging that these figures should be disaggregated for public policy purposes. The Business, Innovation and Skills Select Committee did likewise. The noble Lord, Lord Hannay, referred to the five chairmen of Select Committees. All the aforementioned are powerful voices recommending that for domestic policy purposes, overseas students should not be counted against the overall limit on net migration.
Contrary to that, the Government’s response to the Business, Innovation and Skills Select Committee’s report stated that they were following the same practice as the US, Canada and Australia, our main higher education competitors. That is simply not the case. Those countries do exclude students, treating them as temporary migrants for domestic policy development. It is high time that we did likewise—failing which we are going to find that we are in grave difficulties over our ability to attract these students in future.
Lord Wallace of Tankerness
My Lords, this has been an important and interesting debate. It is really about appeals, but I understand why many noble Lords have also used the opportunity to talk about student issues. It is an issue which was well canvassed during your Lordships’ debate at Second Reading. I think the noble Lord, Lord Hannay, has amendments—or at least an amendment—down later in the Bill, where I am sure there will be an opportunity again to debate these matters.
I will of course try to respond to a number of the points that were made but it might be useful to put this into context—the noble Baroness, Lady Smith, spoke to the clause stand part debate and to other amendments with proposed new clauses—and to look at some of the issues regarding students in that context. The key point is that we believe that the present appeals system is complex and costly. The purpose of Clause 11 is to reform and streamline the appeals system so that appeals can be brought only where decisions engaging the fundamental rights of asylum, human rights or EU free movement are made. The clause will also set up an administrative review system to provide a proportionate and less costly mechanism for resolving casework errors.
Clause 11 changes the decisions that give rise to an appeal, the grounds on which that appeal can be brought and the jurisdiction of the tribunal to consider them. As I said, it is intended to simplify an overly complex appeals system. That complexity provides the opportunity for multiple appeals and allows removal to be delayed by the lodging of an appeal as of right where there is no arguable error or where there is a simple casework error that can be corrected more quickly and effectively by administrative review. I will come on to the wider points made by the noble Baroness, Lady Lister, which I am sure we will debate fully. The Joint Committee on Human Rights accepted that there was a legitimate objective to reduce unmeritorious claims, although I accept that other issues arise with that.
Clause 11(2) reduces to four the number of decisions that can be appealed. We recognise the importance of an appeal to an independent tribunal where a case involves fundamental rights such as asylum and human rights, and the provision preserves an appeal right in these cases. A right of appeal is also preserved where the decision was to refuse a claim based on European Union rights. That appeal right is established by secondary legislation under Section 109 of the Nationality, Immigration and Asylum Act 2002 and therefore does not form part of the Bill.
A right of appeal is not the most appropriate remedy for cases that do not involve fundamental rights. The noble Baroness, Lady Smith, mentioned that our internal sampling showed that 60% of allowed appeals against decisions under the points-based system are allowed because of casework error, and asked when that sampling was done. It was a 2% sample between April and June 2013. An appeal is a costly and time-consuming way to correct a casework error but it is not the case, as I think the noble Baroness said, that we are trying to stop a challenge where there is a casework error. There will be an administrative review system, which is what we have been debating and what we believe is the most appropriate remedy in these cases.
Subsection (3) repeals Sections 83 and 83A of the 2002 Act, which provide for a right of appeal on asylum grounds where asylum was refused or revoked but leave was granted on other grounds. They are no longer necessary, as subsection (2) provides for a right of appeal directly against the refusal of, or revocation of, asylum in all cases. Subsection (4) sets out the grounds on which an appeal can be brought. Clause 11 simplifies what is currently a complex system so that the only grounds on which an appeal can be brought reflect the decision under challenge. Subsection (5) restores the Secretary of State’s position as primary decision-maker on asylum and human rights claims and prevents appellants from raising new issues for the first time on appeal. Under the current appeals system, the tribunal has jurisdiction to decide such issues even though the Secretary of State has not had the chance to consider them. For example, a student appealing against the refusal of an application to study in the UK can currently raise asylum or their Article 8 rights, disclosing for example that they now have a family in the UK, which they can do under the present system for the very first time on appeal.
Making this change restores the role of primary decision-maker to the Secretary of State by providing that the tribunal cannot consider any reason that a person has for wanting to stay in the UK that has not already been considered by the Secretary of State, unless the Secretary of State consents to the tribunal considering the new matter. This provision does not prevent a person introducing new evidence about matters that the Secretary of State has already had a chance to consider. The tribunal will continue to be able to make its decision on the basis of all facts relevant to the matters that are before it, as required by case law. Reforming appeal rights will create a better process. Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense.
That is the context in which we are looking at the issue of students, although I accept and acknowledge the much wider issues that have been raised in this debate. I agree with my noble friend Lady Hamwee and with others. In fairness, the noble Lord, Lord Hannay, said as he opened the debate and moved his amendment that there was much common ground between what he was arguing for and the Government’s position.
We agree on the importance of students to the United Kingdom. My noble friend Lord Maclennan gave illustrations of the soft-power benefit that can come from that. Overseas students contribute a great deal to our economy and to the reputation of our academic institutions internationally. There is no limit to the number of genuine overseas students who may come here to study. As the Government have repeatedly said, this country welcomes the brightest and best. It is important to stress that.
On the specifics of the amendment of my noble friend Lady Benjamin, who said that she accepts nothing but compromise, I hope that I can perhaps give her more than compromise. Most of the data sought by my noble friend’s amendment is already published. Data on visa applications, grants, and refusals of tier 4 general visas, and on other visa categories, and corresponding admissions data for those entering the UK, are published quarterly by the Home Office. These statistics also show the number of visa applications made by students sponsored by higher education institutions as distinct from other types of education provider. In addition, the Office for National Statistics publishes quarterly reports on international migration statistics that now include estimates of the number of former students emigrating from the United Kingdom. The Higher Education Statistics Agency is responsible for publishing detailed data about non-EU students in the higher education system.
It might be useful to inform the debate with some statistics. I think that it was said by the noble Lord, Lord Hannay, and my noble friend Lord Clement-Jones mentioned it, too, that there had been a drop in the number of international students. To put it into some kind of perspective, in 2010-11 the number in the UK was 428,230; in 2012-13 it was 425,260, a drop of less than 3,000. Australia had a drop of 10,000 and France of 2,000. There were increases in the USA and Canada, but the drop in the UK was relatively small and much smaller than that in Australia. There was specific mention of Chinese students. Between 2010 and 2013, the number of Chinese students increased in the United Kingdom by 24.5%. Admittedly in the United States the figure was 49.5%, but the increase in Australia was only 1% and in France there was a drop of 4.4%. There is a good story to tell. We are still an attractive proposition for people wishing to come and study.
Lord Clement-Jones
Perhaps my noble and learned friend can tell us what the figures for Indian students are.
Lord Wallace of Tankerness
My Lords, disappointingly the figures for India have gone down and there may be some historical background to that. The figures have gone down from 39,000 to 22,000 over these three years. They also decreased in the United States from 103,000 to 96,000 and in Australia from 21,000 to 12,000. It is interesting that there were decreases in the UK, Australia and the United States, which suggests that there may have been other factors. As my noble friend Lord Taylor said, there had been a big increase at an earlier stage in students coming from India, but I will certainly look for more detail on that.
Lord Lea of Crondall
Does this not demonstrate the value of having some independent statistics on what you might call world market share? The figures for India, the United States, et cetera, have just demonstrated that you have to compare apples with apples on this and we are not necessarily doing that at the moment. It would be very useful, to inform the debate, if we had more data instead of anecdotal evidence on these matters.
Lord Wallace of Tankerness
The noble Lord is suggesting that these figures are anecdotal, but in respect of the countries I have just mentioned—the United States, Australia and the United Kingdom—they are genuine figures, as far as I am aware. There is no way that they are anecdotal. Those for the United Kingdom were produced by the Office for National Statistics.
Lord Hannay of Chiswick
I honestly think that we had better call the day on this selective quotation of statistics. Why cannot we all just use the Higher Education Statistics Agency’s figures for the most recent year? Just picking figures out or suggesting that two or three years before that there had been an enormous increase and so on will get nowhere. This is not a statistical matter. This is about a growing market in which we are losing market share.
Lord Wallace of Tankerness
I did not seek to dismiss this as a statistical matter. I sought to put it into some kind of context: that over the period we have been talking about the drop was less than 3,000, and other countries saw a drop as well. The important point, which I will repeat, is that this country welcomes the brightest and best and there is no limit on the number of overseas students who can come to study here.
My noble friend asked whether students who receive visas go on to use them. All genuine students who qualify will be issued with a visa for the United Kingdom but of course they may ultimately decide to study elsewhere. I know that it may be of interest to my noble friend how many students may go to the trouble of applying for a UK visa and then choose not to travel, but I regret that that information is not available to the Government. I am afraid we cannot meet all her requests but a substantial number of the things that she was seeking in her amendment are already there.
Baroness Hamwee
My Lords, I accept that and I knew that much of what I was seeking was already published. My amendment tried simply to paint the whole story. I accept that some of the painting by numbers cannot be filled in.
A few minutes ago my noble and learned friend said that there is a good story to tell. My short point is: we need to tell it. It seems that we are not telling it and I would like to find a mechanism to get it told. I passed my noble friend Lord Clement-Jones a copy of the Home Office press release that I printed off on Friday. If I were a journalist it would not tempt me to write the good story.
Lord Wallace of Tankerness
My noble friend makes a valid point. We collectively need to think about how to tell a good story better.
The noble and learned Lord, Lord Hope, asked about students staying and working after their studies. While studying, university students can work for up to 20 hours a week in term time and full-time during holidays; they can also undertake work placements. They get four months at the end of their course to gain work experience and after that they can stay if they get a graduate job earning £20,300 or more or are on one of our other postgraduate study work schemes. We have also expanded the post-study work opportunities available. PhD students can stay for a year to gain work experience and those who have a business idea to develop can do so under our graduate enterprise scheme, which I believe is the first of its kind in the world.
In trying to address the issue, the noble Lord, Lord Hannay, has moved an amendment which seeks to add decisions relating to higher education students to the types of decision that can be the subject of an appeal to the tribunal, as set out in Clause 11. The Bill already provides that anyone, including students, can appeal against one of the decisions listed in Clause 11(2): the refusal of a protection claim, the refusal of a human rights claim or the revocation of protection status. The amendment does not change that because it neither adds a new decision type to the list of decisions that attract a right of appeal nor adds to the grounds of appeal that could be raised at appeal. When I was in the other place, I used to cringe a bit when Ministers used to say, “Your amendment is technically deficient” when an important point was being made. Technical flaws aside, we believe the amendment is unnecessary. It is true that a student may no longer appeal against the refusal of an application for further leave to remain in the UK as a student under the Immigration Rules. We are doing that because the appeals system is slow and expensive for those with a genuine concern and presents too many opportunities to frustrate removal for those who seek to break the rules.
The Bill replaces the right of appeal with the administrative review process, which will provide a swifter and cheaper remedy for the majority of those students who would have been successful on appeal. For students who want to move on with their studies, I believe that a quick remedy is better than a drawn out one and that a cheaper remedy is better than a costly one. That relates to the issues which have been raised in this debate in relation to appeals.
Amendment 27 would impose three conditions which must be met before the appeals provisions in Clause 11 come into force. The first is that the Independent Chief Inspector of Borders and Immigration must report on decision-making in entry clearance and managed migration. The second is that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair. The third is that only once those two requirements have been met can an order for commencement of Clause 11 be laid before Parliament and approved by both Houses.
I understand the reservations that have been expressed about decision-making in immigration cases. They were expressed in the report of the Joint Committee on Human Rights and by the noble Baroness today. However, these concerns must be seen from the perspective of the end-to-end immigration system. In 2012, 14,600 managed migration appeals were allowed by the tribunal. The total number of managed migration decisions taken in 2012 was 291,827. Only 5% of those decisions were overturned. Although our internal sampling indicated that 60% of the points-based system appeals that succeed do so because a case-working error has been made, this does not mean that the majority of decisions are affected by error—far from it. The great majority of applications are successful. Of decisions taken in the UK, only 10% were refused in 2012. Fifty-one per cent of those succeeded on appeal, of which 60%, as I referred to earlier, succeeded because an error was made. Looking at decisions as a whole, it is clear that only a small proportion is affected by the changes being made to the appeals system.
The Home Office has taken action to address historic problems with decision quality. I recognise that these concerns have been genuinely aired. It is why the old UK Border Agency was abolished and its functions brought back into the Home Office. That has made a real difference and work is continuing to improve decision quality. The chief inspector himself acknowledged that positive steps have been taken to improve the process by which decision-makers learn from appeals in his November 2012 report on tier 4 student visas, which in turn led to improvements in process and decision quality.
Administrative review will be a central part of the process to improve decision quality, as its function is to identify errors in decision-making. The administrative review process is being developed to incorporate an element of feedback to the original decision-maker. In this way, administrative review will support the ongoing work to improve decision quality. I can also confirm that those who do the review will not be the same as those who undertook the original decision.
The approach adopted overseas for feeding back administrative review outcomes to decision-makers and improving decision quality is recommended as the right approach by the chief inspector in his September 2013 report on tier 1 visas. In-country administrative review is modelled closely on the approach overseas.
Meeting the requirements that the amendments seek to impose before commencing Clause 11 will inevitably cause delay. That will mean that those migrants whose decisions are affected by case-working error will have to continue to challenge decisions by costly and time-consuming appeals rather than being able to take advantage of a swifter and cheaper administrative review process.
Amendment 28 also relates to the commencement of Clause 11. It would require an impact assessment to be laid before Parliament setting out the number of appeals that will be affected by the changes to appeal rights introduced in this Bill and the costs that these changes would cause the First-tier Tribunal to incur. However, as was referred to by the noble Lord, Lord Lea, an impact assessment has already been produced and was published prior to the introduction of the Bill. It contains the information that this amendment seeks to have laid before Parliament. Given the existence of the impact assessment, I hope that the noble Baroness will not press the amendment.
Amendment 29 would require the Secretary of State to produce a review within 12 months of Royal Assent of the numbers of persons deported under Clauses 11 to 14. I rather suspect that the amendment is based on a misapprehension as deportations do not take place under these clauses but rather under Section 5 of the Immigration Act 1971. However, I assume from what was said that the aim is to question what difference the changes in the Bill will make to our ability to deport those whose presence is not conducive to the public good, including foreign national offenders.
The changes made in the Bill are not about large increases in the number of foreign criminals we deport but about the principle that Parliament is rightfully the body to set out the public interest in the importance of seeing foreign criminals deported and that the tribunal is the right body to weigh the strong public interest in deporting foreign criminals against the specific Article 8 rights of the criminal and their family. Success will be seen as these deportation cases progress through the Immigration Tribunal with outcomes that clearly show that the tribunal decision has had particular regard to Parliament’s legitimate view on the public interest. Case law will take some time to develop and settle once these provisions are commenced. It is not sensible to have a set period on the face of legislation for when a report must be presented when we may well at that point have only a very partial picture of the impact of the changes.
The statement of intent published in relation to the Bill also indicated that:
“Within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan”.
It is certainly my understanding that, off his own bat, the chief inspector can also take up any issue at any time. The Government have committed to asking the independent chief inspector to include a review of the administrative review process established under this clause, with that to be done within a year of the process being established. On the basis of these reassurances, particularly with regard to appeals, I hope that the noble Lord will be willing to withdraw his amendment and that noble Lords will agree that Clause 11 should stand part of the Bill.
Lord Hannay of Chiswick
My Lords, I will be very brief because the noble Lord, Lord Singh, and others who are involved in the next debate have been sitting with mounting irritation, I seem to think. He has been very patient and I will not say much.
The point I am making here is that the cumulative effect on students and post-graduates is damaging. The evidence is there and we would be foolish to ignore it. I hope that Ministers will, between now and Report, look carefully at the cumulative issue. That is important. The noble and learned Lord, Lord Wallace of Tankerness, suggested that the drafting of my amendment is somewhat short of perfect. I asked someone who shall remain nameless about that earlier today. He said, “Don’t worry, Ministers always say the drafting is imperfect but, if the House’s views are made known to them, somewhere before Third Reading they will get it right. They have lots of lawyers who can get it right”. I do not wish to continue further now other than to say that we will have to come back to this issue both in the debate on Amendment 49 and on Report. Meanwhile, I beg leave to withdraw the amendment.
Sikh Community
(10 years, 8 months ago)
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Lord Singh of Wimbledon
To ask Her Majesty’s Government what further steps they will take to improve relations with the Sikh community arising from the publication of government documents regarding British involvement in planning the attack on the Golden Temple.
Lord Ahmad of Wimbledon (Con)
My Lords, the debate is time-limited to 90 minutes. All Back-Bench contributions will be limited to 10 minutes each.
Lord Singh of Wimbledon (CB)
My Lords, the first week of June will mark the 30th anniversary of the Indian Government’s attack on the Golden Temple—the Vatican of the Sikhs. The attack was deliberately timed to coincide with the martyrdom anniversary of the temple’s founder Guru Arjan, when the huge complex would be full to overflowing with pilgrims. Tanks and armoured vehicles were used. On conservative estimates, well over 2,000 pilgrims were killed. Eye-witnesses told of how some who surrendered were tied up in their own turbans and shot. Other eye-witnesses outside the temple complex, including my own in-laws, described with horror how they saw groups of pilgrims being herded together and then dispatched with hand grenades. Many of the atrocities were reported in the British and world press. The President of India at the time, Zail Singh, a Sikh, who was the nominal head of India’s armed services, was not even consulted.
Every June Sikhs remember the huge loss of life and the mindless damage to the Golden Temple, the historic centre of the Sikh faith. The question arises: why did Indira Gandhi resort to such brute force against the Sikhs? The Indian government version, unquestioningly accepted by our Government—and I speak as a British Sikh—was that there were 17 wanted separatists “holed-up”—to use the Indian Government’s jargon—in the Golden Temple. They were a threat to a country of 1 billion people. The absurdity is obvious. In addition, this version does not explain why 40 other historic gurdwaras in Punjab were attacked at the same time. Sikh gurdwaras are open to all. Why were the so-called separatists not simply arrested by the hundreds of soldiers and police who daily entered the gurdwara for the traditional free food?
What Sikhs were demanding at the time was a fair share of Punjab’s river waters to irrigate their fields—and, more importantly, fair treatment for all India’s minorities against growing evidence of majority bigotry. Earlier in the same year hundreds of Muslims in Mumbai were massacred, with the mob carrying barriers proclaiming: “Majorities have their rights”.
The true reason for Mrs Gandhi’s vindictive attitude to Sikhs stemmed from her prison conviction for electoral fraud in the election of 1975 and her seizing power and imposing dictatorial rule. Her son Sanjay had married a Sikh and she turned to Sikhs for support. Sikhs, although less than 2% of the population, were at the forefront of the opposition to dictatorial rule, in which the poor—particularly Muslims—were forcibly sterilised and others dumped in the wilderness to make Delhi a tidier place for the Asian Games. Maneka Gandhi, Sanjay’s wife, true to Sikh democratic traditions, openly opposed the dictatorships.
Sikhs were never forgiven by Mrs Gandhi. When she returned to office, she cynically decided to play to majority religious bigotry, first against the Muslims and then even more vindictively against Sikhs. The June 1984 carnage in the Golden Temple far exceeded in numbers and barbarity the 1919 massacre led by General Dyer at the nearby Jallianwala Bagh. Even worse was to come.
The widespread killing of thousands of Sikhs following Mrs Gandhi’s assassination was blamed on spontaneous mob violence. All the evidence is that it was pre-planned for the anniversary of Guru Nanak’s birthday and was simply brought forward, with the government-controlled All India Radio constantly inciting the killers with the words “Khoon ka badla khoon”, meaning “Take blood for blood”. The army was confined to barracks for three full days to allow free rein to organised gangs carrying Sikh voter lists, armed with identical steel rods and an unusually plentiful supply of kerosene, to go around the capital in municipal buses beating and burning male Sikhs and gang-raping women and young girls. Prominent Hindus and Sikhs begged the new Prime Minister, Rajiv Gandhi, to order troops to restore order. His chilling response was: “When a big tree falls, the ground is bound to shake”. The same scenes were enacted throughout the country. We know all about the disappearances and killings in General Pinochet’s Chile, but a WikiLeaks document carrying a signed report from the American embassy in India shows that more Sikhs were brutally murdered in just three days in 1984 than those killed in Pinochet’s 17-year rule.
I turn to our Government’s involvement, as revealed in documents that have now come to light. In their initial reaction, the present Government said that support for Mrs Gandhi was “minimal”. I beg them to think again in the light of the evidence of persecution of Sikhs that was freely known at the time. A Government committed to human rights must question the morality of “minimal” involvement in the persecution of minorities. The released documents praise Mrs Gandhi and cast aspersions on UK Sikhs, with not one word of concern over the murder of thousands of Sikhs.
I was not in the least surprised to read of SAS involvement; I wrote about it at the time in the summer 1984 issue of the Sikh Messenger. Nor was I surprised by evidence linking British support for Mrs Gandhi to a £5 billion arms contract and the need to “keep Mrs Gandhi happy”. In November 1984 I went to see a senior Cabinet Minister to seek government support to end the pogrom against Sikhs. I received the reply: “Indarjit, we know exactly what is going on but we’re walking on a tightrope; we’ve already lost one important contract”.
At the time I was a member of the UNA, where we discussed the killings. The director, Malcolm Harper, formally raised evidence-based concerns with the Government, asking them to support a UN inquiry into the killings. I made a presentation to the All-Party Parliamentary Group on Human Rights, then chaired by the noble Lord, Lord Avebury. The APPG decided to send two parliamentarians to investigate but the High Commission refused them visas. They appealed, saying that the visit would help to improve Hindu/Sikh relations. They were again refused.
Sikhs accept that today’s Government are in no way responsible for the mistakes of the past. However, they can and must help to heal wounds. I was in Westminster Abbey this morning and heard Archbishop Desmond Tutu quote the words:
“The time for the healing of the wounds has come”.
This is true for the wounds in the Sikh community, opened further by the new revelations.
I take this opportunity to thank many in the Hindu community who hid and sheltered Sikhs at the time of the killings. Others risked their lives carefully documenting the names of Congress Party leaders inciting mobs to kill. Sikhs owe them a great debt.
Two of the three main political parties in India have declared their support for an open inquiry. Even Rahul Gandhi, leader of the Congress Party, has admitted that some Congress officials were involved in the killings.
Speaking in the Indian Parliament in 2005 Prime Minister Manmohan Singh made the revealing comment:
“Twenty-one years have passed … and yet the feeling persists that somehow the truth has not come out”.
I urge the Government to add their support for an open, independent inquiry into the massacre or genocide of Sikhs in 1984 in the same way that they are backing a UN-led inquiry into the killing of Tamils in Sri Lanka. Against this, all offers of government assistance and offers to talk to Sikhs pale into an unnecessary distraction.
Eighty-three thousand Sikhs gave their lives supporting Britain in the two world wars. In comparison, giving public support for an open, UN inquiry is a small ask. Not to do so will give a clear message to Britain’s half a million Sikhs and others concerned with human rights that the UK Government are ambivalent and selective on issues of human rights. As director of the Network of Sikh Organisations, the oldest and largest grouping of Sikhs in the UK, and of the more recently formed Sikh Council UK, I offer my full and unconditional support to the Government to help end the 30-year nightmare suffered by Sikhs. We are confident that our Government will not let us down.
Lord Sheikh (Con)
My Lords, I thank the noble Lord, Lord Singh of Wimbledon, for initiating this debate. I am close to the Sikh community, and I enjoy good relations with it. In fact, I am patron of two Sikh organisations. Sikhs have played a vital part in the life and history of the United Kingdom. The first Sikhs settled here 160 years ago, in 1854. Since that time, waves of Sikh migrants have come here and successfully integrated into British society. We owe them an immense debt of gratitude for fighting shoulder to shoulder with us in both World Wars. They also played a key role during the post-war expansion of the British economy. They filled many jobs when Britain was experiencing a labour shortage. There are now more than 500,000 Sikhs living in the United Kingdom. The British Sikh Report 2013 found that 95% of British Sikhs are proud to be born or living in the United Kingdom. They have been successful in every walk of life, including business, the professions, sport, academia and politics. Indeed, we are pleased to see a turbaned Sikh in your Lordships’ House today.
The Sikhs have a reputation for a strong work ethic and are second only to Jews in how financially productive they are as a religious group. At a reception last year to mark the harvest festival of Vaisakhi, the Prime Minister referred to Sikhs as a model community. Their values of hard work, loyalty and service to the community resonate strongly with me as a Muslim. The writings of a Muslim, Sheikh Farid, are in the Sikh holy book, which is called the Guru Granth Sahib.
We have a proud tradition in the UK of accepting and welcoming those from other cultures and of other religions. Nowhere has this been truer than with the Sikh community. The academic Dr Jasjit Singh has noted that British Sikhs are more comfortable wearing turbans than those in other countries. I find that more Sikhs are now wearing turbans, which they did not do before.
Although the Sikhs are well settled and happily integrated into the British community, there is unease within the community relating to Operation Blue Star. The events of June 1984 should never, and will never, be forgotten. The bloodshed and loss of life was, as the Foreign Secretary himself said, an utter tragedy. Estimates of the number of deaths range from the hundreds to the thousands, including innocent pilgrims caught in the crossfire. It will for ever be remembered as a horrific point in history, which caused long-lasting suffering and desecrated Sikhism’s holiest place of worship. It was therefore only right that it was revisited when the disclosed documents were published under the 30-year rule.
I acknowledge the swift and proactive way in which our Government dealt with these revelations. The Prime Minister immediately instructed the Cabinet Secretary to carry out an investigation, and I commend him for doing so. The Foreign Secretary has assured us that the investigation was both rigorous and thorough, and I have no reason to doubt this. The report was clear that the UK’s assistance was purely advisory in context and very limited in volume. When the actual military operation took place several months later, it diverged vastly from the original plans. We can therefore be confident that there was little, if any, connection between the British advice and the disastrous events that eventually unfolded. However, the resonance of this investigation with today’s Sikh community cannot be underestimated.
Continued suspicion and a desire for disclosure were inevitable. We must sympathise and deal with this appropriately. As the Prime Minister himself has said, the scars in the Sikh community still run deep. I know from my connection with the community that there are Sikhs asking for further action, namely the holding of an independent inquiry. Under the circumstances, it is of paramount importance that the Government are seen to be reaching out to, and working with, the Sikh community. The role of Sikhs in our country is generally well acknowledged and respected. David Cameron was the first British Prime Minister to visit the Golden Temple. I am aware that the leader of the Opposition is visiting this week, as have a number of other parliamentarians. I have personally visited the Golden Temple on three occasions, where I was received with a great deal of courtesy and respect. It must be borne in mind that the foundation stone of the Golden Temple was in fact laid by a Muslim, whose name was Mian Mir.
The Sikhs of course believe that no one should interfere with their wearing of turbans, and I am pleased that this Government ended the manual searches of turbans at airports. I know that this move was very welcome.
Our commitment to the Sikh community goes hand in hand with our commitment to uncovering the truth. I ask my noble friend the Minister if she can address the holding of an independent inquiry. As I have said, there are Sikhs in the United Kingdom who are asking for one to take place. In any event, all proceedings must be conducted with the utmost transparency and accountability at their heart.
Lord Hussain (LD)
My Lords, I thank the noble Lord, Lord Singh, for securing this debate. I was aware of the almost unanimous outcry of the Sikh community all over the world on the invasion of the Golden Temple by the Indian armed forces in 1984. This was a tragic event that resulted in the loss of thousands of innocent lives that could have been avoided.
The recent release of the report by the UK Government regarding the attack on the Sri Harmandir Sahib—Golden Temple—complex has raised more questions on the British involvement in this operation. I have had long discussions with Sikh leaders, including my friend and colleague, Parmjit Singh Gill, a former Member of the other House and one of only five Sikhs ever elected to it. He has worked robustly on the issue, both before the release of the report and after. I believe that, along with other Sikh leaders, he has met some of the most senior people in the Government, including the Cabinet Secretary, the Deputy Prime Minister and the noble Baroness, Lady Warsi.
On behalf of the British Sikh community, I wish to raise the following points. First, the Cabinet Secretary had reported that a key file on the provision of military advice to the Indian authorities on their plans for the attack in June 1984 was destroyed by the Ministry of Defence in November 2009. It remains unclear why such an important file was destroyed, and this lessens the credibility of the internal inquiry. Given the incredible importance of the 1984 attack to the Sikh faith, who took the decision to destroy the files and how was that decision taken? Was it taken at the ministerial level?
Secondly, Parliament appeared to have been misled at the time, following a Question on 30 July 1984 by the then MP for Slough, John Watts, who asked the Secretary of State for Foreign and Commonwealth Affairs what discussions Her Majesty’s Government had had with the Government of India about the incident—the attack on the Sri Harmandir Sahib, or Golden Temple. Ray Whitney, then Parliamentary Under-Secretary, replied:
“The Foreign and Commonwealth Office has received petitions and numerous letters from the Sikh community in the UK about recent events in Punjab. As this is an internal Indian matter, we have not sought to discuss it with the Indian Government”.—[Official Report, Commons, 30/7/84; col. 111W.]
Is this not contrary to the fact now established that they were in discussions and had provided military advice?
Thirdly, the media had reported in January 2014 that the then Prime Minister had ordered an inquiry to be carried out by the Cabinet Secretary which would cover the events of 1984. However, the inquiry covered only the period up to the start of the attack and no other events, which included the genocide of Sikhs that followed later that year. Clearly, the parameters of the review were too narrow, and it has been alleged that the terms of reference, which have not been published, changed during the inquiry. Would it not have made sense, if the inquiry was to carry the confidence of the Sikh community, to review and release all documentation covering the 1984 events, and over a much broader period of time, including the genocide of Sikhs in 1984? Despite the review and report, why have the details of the specific advice that was given not been revealed, nor the reason that the UK Government agreed to advise the Indian Government on how to attack the Sikhs’ holiest shrine?
Fourthly, when the Foreign Secretary delivered his Statement in the other place on 4 February 2014, Members raised questions suggesting that defence-related commercial interests had been advanced on the basis of providing advice to India and that measures had been taken by the UK Government to stop Sikhs in the UK exercising their democratic right to hold peaceful gatherings. Will the Minister comment on that?
Fifthly, what sanctions, if any, did the Government of India threaten the UK with in order to secure its silence when a genocide of Sikhs was taking place in India in 1984?
Finally, given the gravity of the decision by the UK Government of 30 years ago to provide military advice to the Indian authorities, which led to the series of events resulting in thousands of innocent Sikhs losing their lives, the very least that the estimated half a million Sikhs in the UK are entitled to from this Government is a full, independent, judge-led public inquiry so that the truth can finally come out. Will my noble friend promise a full, independent, judge-led public inquiry to establish the facts about the extent of British involvement in the Golden Temple invasion, to satisfy the British Sikh community?
The Lord Bishop of St Albans
My Lords, the noble Lord, Lord Singh, has spoken eloquently of the terrible events that took place 30 years ago.
For some seven years in the 1990s, I was privileged to live in Walsall in the West Midlands, in a very multicultural area where I was then working and ministering. I not only counted among my friends a Sikh family living next door to me, but I also paid many visits to the local Guru Nanak temple and received wonderful hospitality there. Even then, some 10 years after the events of Operation Blue Star, Operation Sundown and Operation Woodrose, I was aware of how large these tragedies loomed not just in the imaginations but in the families of my neighbours.
These were not simply events that had taken place in a remote area; they were events that deeply affected people who lived around me. This was compounded because some of the worst atrocities took place at the holiest site for Sikhs. I am acutely aware of the pain, anguish and consternation that many of my Sikh friends feel. I want to identify with that. I am aware of just how difficult this is for them and of what they are feeling at the moment, as British citizens who have learnt that their own Government provided military advice not long before Operation Blue Star. I am not surprised that they are asking a lot of questions as they reflect on what happened.
During that period in the 1990s when I lived on the edge of the Black Country, I undertook some empirical research into the Sikh community as part of a degree that I was doing. It was fascinating. That research revealed that young Sikhs at that time in the West Midlands were a group with some of the highest levels of motivation and ambition compared with their peers. They were achieving excellent academic results in their exams. Not only were these young people making a real and tangible contribution to our society and our economy, but their families were making a huge contribution to their wider families back in their country of origin.
We know from other ethnic minority and minority religious groups in this country that sometimes events can be so significant—or, to use a rather overused word, so iconic—that they become catalysts for the radicalisation of a minority of their followers. Fortunately, there are few signs that this is happening in the Sikh community at the moment. However, there is a real danger that it could happen. As has already been pointed out by the noble Lord, Lord Singh, it is significant that the latest revelations have emerged in the 30th anniversary year, which adds great poignancy to our deliberations this evening.
I want to acknowledge the role that the Foreign Secretary has played in this matter: his clear commitment to transparency, the investigation that has taken place, his Statement and his commitment to the ongoing dialogue. It is important that that continues. Nevertheless, in this case there are reasons why we need some sort of wider inquiry into what went on. We need to ensure that if there are any other areas in which there was complicity, not least between our Government and the Indian Government, they should be acknowledged.
If we are going to claim the moral high ground of believing in open government, and if we want our Sikh brothers and sisters to know that they are fully part of our nation and their contribution is still valued, we need to take a further look at this issue and have some sort of wider inquiry. If we fail to do so and to do everything we can to address the serious concerns being expressed by all sections of the Sikh community—and they are widespread concerns—there is a real danger of long-term damage to our excellent and outstanding community relations that have been built up over such a long time. I hope that we can find some way forward to give deeper reassurance to our Sikh brothers and sisters.
Baroness Berridge (Con)
My Lords, I thank the noble Lord, Lord Singh, for securing the debate and I want to state that I have very much enjoyed getting to know the noble Lord. He is a fellow officer in the All-Party Parliamentary Group on International Religious Freedom or Belief. He brings a significant voice from the Sikh community to our plural public debate. However, I have to say that when he began to tell me about the implications of the documents that have been released I was surprised that there could have been any connection. That may reflect the fact that I was not perhaps old enough to be conscious of the seriousness of the events at the time. However, I was surprised to learn that there had been this type of involvement.
In many ways, the title of this debate saddens me as the hundreds of thousands of British people in the Sikh community have been a good example of integration, with many successful businesses, and involvement in politics—with Paul Uppal MP in the House of Commons. The England cricket team is of course in need of another Monty Panesar to rescue our performance. Members of the Sikh community are also an exemplar of how reasonable accommodation of religious beliefs can be achieved in UK law. Section 11 of the Employment Act 1989 exempts turban-wearing Sikhs from any requirements to wear safety helmets on construction sites or to wear crash helmets. The Kirpan ceremonial knife is exempted under the Criminal Justice Act 1988 if carried for religious reasons.
However, the news coverage of this matter reveals that the relationship between the UK Government and the Sikh community is strained and reconciliation is needed. Despite the attempts by the first inquiry, it seems that we are not where we would like to be. Any relationship needs the parties to trust each other and that in this scenario depends on openness. After reading various reports, it is clear that the disclosure of the documents in January of this year was inadvertent. This was disclosure of information that the UK Government had decided would always remain secret. It is important that Her Majesty’s Government have been clear about this as it is a starting point for considering matters and restoring the relationship. In this scenario, it seems that the Ministry of Defence made a mistake in that it did not destroy all the files that it should have done and that at the 25-year point copies were left. Although the Cabinet Secretary’s report has pieced together the material from copies left in other government files, it has inevitably left a lingering and damaging suspicion that not all the documents needed were in fact available to the inquiry. It is partly to ensure that this does not happen again that Her Majesty’s Government have instituted an inquiry into the disclosure under the 30-year, or soon to be 20-year, rule. As a matter of practicality, at 25 years, should the files be destroyed? Would it not be sensible to wait until 30 years have passed to make sure that we are not in future inadvertently placed in this position again and that the files remain to be considered if needed. These documents were never intended to be disclosed as the decision was made that they would reveal information relating to intelligence or special forces. This situation would have meant that the destruction of all the files in 2009 was appropriate and all the copies in the other files should have been destroyed.
As I said, I am pleased that there is a commission looking into the annual release of papers and the process for withholding information. But as this was an inadvertent disclosure, we have a rare window into the decisions that are made on the basis of the military and special forces destruction of information. Will the commission have any remit to receive views from the public and interested bodies, particularly the Sikh community, on whether this kind of information should have been available for disclosure after 30 years? Is there not an advantage from such an inadvertent disclosure to have public debate on whether the line of non-disclosure is being drawn in the right place?
I note at this point that there has been no cry from the Government in terms of an Edward Snowden-type situation where we have all kinds of security implications because we know about what happened 30 years ago. But if it is not going to be part of the commission’s work, could Her Majesty's Government advise whether the Intelligence and Security Committee could have a remit to consider this issue? The relational problems are perhaps being exacerbated by the fact that the Cabinet Secretary, on behalf of Her Majesty's Government, is investigating the previous behaviour of Her Majesty's Government. Would not the ISC, which is a parliamentary committee, be more neutrally placed to look into this matter to allay the fears of additional documentation being available that such an inadvertent disclosure has created?
I am afraid that I am not currently persuaded of the need for a full inquiry, but I completely understand the feelings of the Sikh community in lacking trust in their Government in this regard. It seems that they were never intended to know this information, which leads to legitimate concerns for the community of what else the Government know and questions about why the community should not have known this information after 30 years. As I am sure Her Majesty’s Government realise, it is one thing to express your apologies for the death of community members at the hands of a foreign Government. Quite another type of apology and restoration is needed if you have involvement, albeit limited and perhaps ineffective involvement, but involvement none the less, in the actions of a foreign Government in these types of matters. Undoing this relational damage will be difficult, but I struggle to see how this relationship can be fully restored unless the question is answered of why after 30 years the community could not in any event have known this information.
Finally, I note that the Indian Government are looking into this matter again. Can my noble friend the Minister indicate whether the UN is looking at holding some form of inquiry into the matter? I strongly support an international inquiry. If Her Majesty’s Government could support that, it would do something to improve relationships. I sympathise with Her Majesty’s Government over this inadvertent disclosure as restoring the relationship with the Sikh community will not be straightforward. I hope that they are able to do this, whether in the manner that I have outlined with the ISC or through another vehicle. Otherwise the views of political parties—I wait to hear with interest the views of those on the Benches opposite—on a full public inquiry could well become in May 2015 what political strategists call a wedge issue for voters.
Lord Triesman (Lab)
My Lords, I join everyone in thanking the noble Lord, Lord Singh, not just for securing the debate, but for the moving, careful and thoughtful way in which he introduced it. I appreciated that greatly, as I did the valuable history of the noble Lord, Lord Sheikh, and its full recognition of the contribution of the Sikh community, which was again very moving. Like him, I have visited the Golden Temple. It is an inspiring and deeply religious place, where you feel the depth of belief.
People sometimes say that dreadful events occurred at a different time in our history when different understandings of what normality was held sway. This is not such a case. No such argument, in my view, is available. A massacre is a massacre. It came in the midst of many other outrages against the Sikh people. People are entitled to know with as much certainty as possible what happened and why, who was involved and with what level of culpability.
The right reverend Prelate the Bishop of St Albans mentioned Operation Sundown and other events, all of which contribute to the knowledge we need. Her Majesty’s Government must today understand this feeling among the Sikh community, not for any reasons to do with 2015 but because it is needed and right, and the community has a plain entitlement to know what happened and why. The nature of the terrible events at Amritsar in 1984 affects not only the Sikh community but all of us. It affects our country and our sense of decency—the values that we hold for ourselves, as well those held in that community.
The point made by the noble Baroness, Lady Berridge, is of great importance. This was an inadvertent disclosure; it was always intended to be a permanent secret, whatever the pain that would cause—pain that could have been alleviated but which it was intended should not be because of secrecy. It has been said that the Indian Government at the time turned to the United Kingdom because, through the experience of Balcombe Street and other sieges, we had relevant experience. Be that as it may, Balcombe Street and Amritsar look to me to be very different, and their consequences hugely different.
The study by the Cabinet Secretary published recently states that he studied 23,000 documents in 200 files. He reports that key documents were destroyed as,
“part of a routine process”,
at the 25-year review point. The noble Lord, Lord Hussain, has also made the point about why some documents were destroyed. I share that view with him. The Cabinet Secretary concluded that we did nothing more in respect of Operation Blue Star than provide limited military advice. I am surprised that such a conclusion can be reached given the documents that are missing because they would have added great clarity. If he is so confident of these facts, it seems to me that he should not be. There is an information gap, which requires further investigation.
Sir Jeremy Heywood notes the high level of the request for assistance that was received. Mrs Ghandi, it is said, would not have understood a failure to help. However, he concludes that the assistance—the advice—was not subsequently taken. Indeed, he concludes that everyone thought our advice and assistance was insufficient and insignificant. In paragraph 19 of his report, he notes that Mrs Ghandi’s letter to Mrs Thatcher of 14 June 1984 made no reference to UK assistance at all. In paragraph 20, he notes that the military commander at Amritsar, Lieutenant-General Brar, said that no one had helped in planning or execution. This is seen by Sir Jeremy as compelling evidence of the United Kingdom’s minimal role. I find this nothing like as compelling as he appears to. At the least, it is untested by the kind of full inquiry that is plainly needed on this occasion and in the remarkable absence of Mrs Thatcher’s letter to Mrs Ghandi. Where is that letter and what does it say?
Sir Jeremy may be right. However, it is just as probable that the documents—the historical trail—were intended on this occasion to show how small the United Kingdom’s involvement was because it was thought that that was the best way of describing our approach. It is just as probable that a proud nation such as India, with a proud military commander, wanted to confirm the strength of its sovereign role and capability without making reference to anybody else. Such possibilities are commonplace in the relations between nations at this level. It is not fanciful, on the evidence that Sir Jeremy himself looked at, that other conclusions might be drawn. Sir Jeremy’s final assertion is, I fear, rather too shallow to remain unchallenged.
All of this flows to his main conclusions in paragraph 23. He is an exceptional civil servant, and I will always say so, but the conclusions are far from beyond challenge. An inquiry is the right place for a challenging examination, and nothing less will commend itself to the Sikh community, or indeed to the rest of us. Missing documents, insecure conclusions and a failure to grasp the context do not inspire confidence. However, the documents that are available provide some context. In those documents many express concern about the denigration of anyone who had anything to say about the matter as extremists. Her Majesty’s Government did that at the time. The view of Sikhs and other supporters of Mrs Thatcher’s Government would, I believe, regard what was said then as intolerable if it was said today. It should have been intolerable when it was said at the time.
This was and still is a remarkable community. Its offence was to object to a sequence of events and finally to the massacre of a large number of its members. It was perfectly entitled to object in those terms. What is more, researchers at Kew have found documents that were believed to be missing—some are still missing—which bear on the gaps I have tried to describe, as have other noble Lords in the debate. It is regrettable that our call for all the relevant documents to be placed in the public domain and for a list of those who were interviewed by Sir Jeremy is as yet not forthcoming. I regret the narrowness and limited timeframe of Sir Jeremy’s terms of reference. Again the noble Lord, Lord Hussain, made that point very forcefully. So tonight is, in my view, something of a watershed. This is not a small debate at the end of a busy day. Her Majesty’s Government cannot sidestep the issues tonight. An independent public inquiry is needed: they should agree to it tonight and do so with good grace. It will be forced on the Government either legally or by the outrage of the community so, rather than that, they should do it because it is right and it is inevitable, and take credit for doing the right thing.
Will the Minister give us a positive answer tonight? Will she agree to sufficiently wide terms of reference and an appropriate period to allow this matter to be investigated properly? When will the Prime Minister respond to these matters, and to the letter of 2 February from the Sikh Federation UK? When will its letter of 12 February setting out the fault lines in the Cabinet Secretary’s report receive a reply? When will the Prime Minister and the Foreign Secretary meet representatives of the federation in order to ensure that progress can be made? Does the Minister accept that answers to whether Parliament was misled on 30 July 1984 have been misleading, having been based on what I can describe only as a somewhat deceitful piece of sophistry? Will she simply acknowledge that error? Will the United Kingdom’s military adviser’s report, provided to the Indian Government on 13 February 1984, be shared with Parliament so that it can assess whether the United Kingdom’s advice was taken or not? If it is thought that it is too sensitive, will it be provided through the Intelligence and Security Committee, as has also been discussed tonight?
I think all noble Lords who have spoken in the debate believe that there should be some form of inquiry, although in the case of the noble Baroness, Lady Berridge, by an international body rather than a UK one—generally, I think we have all considered one undertaken by the UK—and I hope the Government will respond to that positively. That is because, finally, the Government will have to apologise, and should apologise, to the Sikh community. They can then explore with that community a positive act of reconciliation. It is time that this was resolved.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, I am grateful to the noble Lord, Lord Singh, for securing this debate and for his patience in waiting until the end of the evening for it to be held. I agree with the noble Lord, Lord Triesman, that this is not a debate which should simply be seen as something that happens at the end of the day. It should reflect the tragedy of what happened in Amritsar 30 years ago, which led to a great loss of life. That must never be forgotten. I understand the pain and suffering that these events inflicted on the Sikh community. It is still deeply felt in the United Kingdom and around the world. It was in deference to that strength of feeling that when, on 13 January, two documents published by the National Archives appeared to indicate that the then British Government had sent a military adviser to the Indian Government in the early stages of the crisis, my right honourable friend the Prime Minister ordered an immediate inquiry.
The investigation was treated with the utmost urgency and seriousness. The process has been made as transparent as possible and its findings have been made public. As I made clear to the House on 4 February, and my right honourable friend the Foreign Secretary made equally clear in the other place, following his exhaustive review of over 23,000 documents, the Cabinet Secretary concluded that the UK’s assistance was purely advisory, was limited in both timescale and scope, was provided at an early stage and, consequently, had limited impact on events. No further information has emerged to suggest possible UK involvement in any other military operations in India in 1984.
On the same day that the Cabinet Secretary’s report was published, my right honourable friend the Minister of State for India and the Parliamentary Under-Secretary of State for Communities and Local Government met Sikh representatives to discuss the findings of the report and to listen to their concerns. I understand that the noble Lord, Lord Singh, was at that meeting. The meeting coincided with the Statement in your Lordships’ House, and I was thus not present. However, in my dual role at the Foreign and Commonwealth Office and at the DCLG I met the noble Lord and other Sikh representatives last week to listen to the views of community members, who have now had three weeks to examine the Cabinet Secretary’s report.
At that meeting a number of issues were discussed and issues raised including those that have been raised in your Lordships’ House today. I shall address each in turn. My noble friend Lord Hussain asked a number of specific questions and I hope that I am addressing those too in dealing with these issues. First, on the focus of the investigation and whether it changed, from the outset the investigation looked at the circumstantial evidence that came to light on specific allegations of UK involvement in Operation Blue Star. As my right honourable friend the Foreign Secretary made clear in the House on 4 February,
“the Cabinet Secretary has not turned up in producing the report, other circumstantial evidence that we think requires such investigation. Of course, we do not know what evidence will ever be turned up in future, so we cannot rule out all investigations for the future”.—[Official Report, Commons, 4/2/14; col. 149.]
My noble friend Lord Hussain asked specifically why the investigation did not look at events other than those in 1984. The search did not extend to any other timeframe such as 1986 or 1988 when, for example, Operation Black Thunder was undertaken. However, there was no indication from the files searched that there was any UK role in these.
On the allegation that the decision to provide advice may have been linked to UK commercial interests, the report found “no evidence to substantiate” this allegation. My right honourable friend stated:
“The investigation did not find any evidence in the files or from officials of the provision of UK military advice being linked to potential defence or helicopter sales, or to any other policy or commercial issue. There is no evidence that the UK, at any level, attempted to use the fact that military advice had been given on request to advance any commercial objective”.—[Official Report, Commons, 4/2/14; col. 141.]
The right reverend Prelate the Bishop of St Albans mentioned other operations. Operation Sundown was one to which I think he referred. The report states:
“Recent Indian media reports suggest the operational plan developed by the Indian interlocutors of the UK military adviser was called ‘Sundown’, and focused on detaining Jarnail Singh Bhindranwale, the leader of the Sikh dissidents occupying Sri Harmandir Sahib. There is no mention of ‘Operation Sundown’ in UK files. Nor do those interviewed recall that name. Nor was the UK military adviser’s report of February focused on a ‘snatch’ operation. The plan it focused on was designed to re-establish control over the temple complex. It is, of course, possible that Indian planning went through several iterations after the UK military adviser’s visit and report”.
My noble friend Lord Hussain asked whether we would publish the UK military officer’s advice. It would not be in the interests of national security to release the tactical details of specialist military advice and under successive Governments it is not something that has been done. The noble Lord, Lord Singh, and my noble friend Lord Sheikh called for an international inquiry. On such calls, I say that the purpose of the Cabinet Secretary’s investigation was to establish the extent of UK government involvement in the Indian Government’s plans for military operations, not to look into the operation itself or the actions of the Indian Government. That is a matter for the Indian authorities.
The noble Lord, Lord Triesman, gave a number of hypothetical interpretations of what the documents could have been trying to suggest. However, the report focused on what the documents actually said and was written on that basis.
My noble friend Lord Hussain asked whether Parliament was misled at the time of Operation Blue Star, given the comments of the then PUS in a Written Answer in July 1984 that the UK had “not sought to discuss” the operation with the Indian Government. The Cabinet Secretary says in his report to the Prime Minister:
“My view is that the Parliamentary Question and Mr Whitney’s reply were almost certainly directed at the question of UK-Indian discussions post the storming of the temple complex”—
Sri Harmandir Sahib—
“and therefore in this context Mr Whitney did not mislead Parliament. This is reinforced by the fact that neither Mr Whitney nor his office were copied any of the relevant papers on the UK military officer’s earlier visit in February, which was treated as Top Secret. Mr Whitney is now deceased”.
My noble friends Lord Hussain and Lady Berridge asked why some relevant documents were destroyed. Some military files on various operations were destroyed in November 2009, including one on the provision of military advice to the Indian authorities on their contingency plans for Sri Harmandir Sahib. I understand that this was part of a routine process undertaken by the MoD at the 25-year review point. The decision to destroy files is made on a case-by-case basis and by assessing relevance to ongoing operations and the broader historic significance. In this instance, it was not felt necessary to preserve that file.
I assure my noble friend Lady Berridge that we are determined to look at the wider issues raised by these events about the management and release of information held by government. Under the Constitutional Reform and Governance Act 2010, the 30-year rule has been superseded by the 20-year rule that my noble friend referred to, so that, as from 2022, all annual releases will be after 20 years. However, it is not clear at the moment that this change is being approached in a uniform fashion by all departments. The Prime Minister has therefore decided to commission a review to establish the position across government on the annual release of papers and the ability and readiness of departments to meet the requirements of moving to the 20-year rule, including the processes for withholding information. That review is being carried out by the Prime Minister’s independent adviser on ministerial standards, Sir Alex Allan.
As part of the Cabinet Secretary’s review, relevant departments have also searched their files for papers covering the handling of events at Amritsar from December 1983 through to the end of 1984. Some files extended to 1985. However, it is important to remember that, under established processes set out in long-standing legislation, it is not the date of each document that determines the release date but the date of the last document on a file. There will inevitably be other documents on India from 1984 in subsequent tranches of releases, but we are confident that we have secured all papers to do with UK advice on the tragic events in Amritsar in 1984. The noble Lord, Lord Triesman, referred specifically to the Lady Thatcher-Mrs Gandhi letter. That was released as part of a public release by the National Archives and is in the public domain.
In the wider context of the issues of concern to the Sikh community, the community meeting that I had, at which the noble Lord, Lord Singh, was present, discussed broader issues, including the way in which the British Sikh community is perceived now and was perceived at the time of the events in 1984. I stressed to him at the time that I believed that the working relationship between the Government and the Sikh community on domestic issues has been a good one. The Department for Communities and Local Government has engaged on a number of issues and, indeed, after being advised by the community, there have been some great successes. One is the wearing of turbans through airports, for example, and the use of swabs as opposed to the way in which it is done in some other European Union countries. I know that the Ministry of Justice is engaged on a whole series of issues with the British Sikh community, as is the Government Equalities Office around legislation on equalities and human rights.
However, I understand that whatever the relationship is with the British Sikh community, the issue remains one that raises huge concern. That is why I said to the noble Lord and to the community representatives at the time that if specific questions remain—some have been raised today—it is for officials to see what we can do to respond to them. I laid out a series of action points at the end of that meeting and I will certainly be writing to the Sikh Council, which appointed itself as the convenor of that meeting, as a way of communicating back to the community. I will make sure that copies of that correspondence are sent back to the noble Lord, Lord Singh, and that the conversation between the Government and the British Sikh community continues.
In conclusion, the families of those who were killed at Sri Harmandir Sahib have had to live with the hurt of that day for three decades, and the pain of their loss is clearly still keenly felt. The suggestion that the British Government may have had a hand in the tragedy will have understandably shaken the Sikh community, a group that makes such a valuable and positive contribution to our society. However, this Government, perhaps more than any other, have recognised the need for honesty and transparency when it comes to the darker moments of our past. That is why, when concerns were raised, we took instant action. All the evidence has been properly and thoroughly examined.
The Cabinet Secretary’s investigation and the published report have made clear a number of things. The UK’s assistance was limited; it was purely advisory. It had limited impact on the tragic events that unfolded at the temple three months later and the advice was not given in exchange for any commercial gain. There is no record of the British Government receiving advance notice of the operation.
I know that the events of 30 years ago will continue to be deeply distressing for all those whose lives they touched, but I hope that this investigation and the open manner in which it has been conducted will provide some reassurance to the Sikh community, to this House and to the public. I am once again grateful to the noble Lord for providing the opportunity for us to discuss the matter today.