Brexit: Refugee Protection and Asylum Policy (EUC Report)

Debate between Baroness Barker and Baroness Meacher

Tuesday 22nd September 2020 Grand Committee

[Baroness Meacher (CB)]

My Lords, I too congratulate the EU Committee, whose report is comprehensive, clear and informative; it is really quite excellent. I want to put a number of questions to the Minister. No doubt her wind-up speech will respond quite automatically to some of them but, in so far as that is not possible, I wonder whether the officials might respond to some of the unanswered questions today.

As the report says, a UK withdrawal from the Dublin system after Brexit would result in,

“the loss of a safe, legal route for the reunification of separated refugee families in Europe”,

as my noble friend Lord Jay quoted. In a no-deal scenario, the impact on refugees really could be appalling. Can the Minister give an assurance that a temporary extension of the current arrangements will be put in place in the event of no deal until a satisfactory alternative system can be generated? It does not seem a lot to ask.

Very concerning is the fact that the UK does not participate in the family reunification directive, under which the participating EU countries have common rules governing the exercise of the right to family reunification by their country nationals, including special rules for refugees. The report points out that:

“The Government has indicated its intention to establish a new strategic relationship on asylum and migration with the EU—replicating some of the key principles of Dublin”.


I emphasise “some”. Can the Minister indicate which principles the Government do not plan to include in their new strategy, and why not?

I share the concern of the committee about a potential reduction in the reunion rights of vulnerable unaccompanied children; a number of noble Lords have already referred to this incredibly upsetting issue. Can the Minister assure the House that the Government will actually increase the protection against disruption to family reunion afforded by the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, and can she spell out what the additional protections will be? Future UK-EU asylum co-operation should include a framework for the speedy resolution of refugee family reunion cases, ideally based on continued UK access to the Eurodac database. Can she give the House any information about these issues?

Can the Minister comment on the conclusions of David Bolt, the UK Independent Chief Inspector of Borders and Immigration? He said—I thought very tellingly—that

“the Department had handled family reunion applications as if they were visit visa applications”,

and that the Home Office had been

“too ready to refuse family reunion applications on the basis of insufficient evidence”,

instead of giving the applicant more time to produce more evidence, which might result in a much fairer and more efficient outcome. Bolt made the point that the readiness to refuse came from seeing these applications as “the wrong thing”. I do not fully understand all that, but it certainly sounds deeply worrying. Despite an improvement following the Bolt report, evidence from other witnesses shows that stakeholders continue to have significant concerns over the process for reuniting refugee families in the UK.

Probably the most upsetting aspect of the refugee tragedy is the fact that unaccompanied children are not allowed to sponsor their parents to come to the UK. The Refugee Council said that these restrictions condemned some of those children never to see their family members again. I find that shocking. Can we really continue with such a policy? I think not.

Not quite as bad as the position of unaccompanied children, but nevertheless also unacceptable, is the rule that family reunification does not allow so-called non-dependent children to be reunified with their families in the UK. What this means in practice is, of course, that the family has to leave behind an 18 year-old or so daughter or son, and we know that, in a number of countries, a daughter on her own with no family protection at all could be in serious jeopardy. Again, I hope that the Minister can reassure us that this will be dealt with.

The report rightly refers to the Home Office’s failures to assess the evidence available and its tendency to apply an

“excessively high standard of proof”

in family reunion cases. It also states that the Home Office regularly exceeds the time limit to conclude these cases under the Dublin regulation, and the time taken is, as we all know, no small matter. Delays can have long-lasting and serious impacts on the mental and physical health of vulnerable child refugees, who have already suffered enough before they arrive here.

An anomaly that should surely be sorted out when we leave the EU is that local authorities receive £25,000 over five years to support a child with a family who arrive through a resettlement scheme, but nothing to support an unaccompanied child and help with the costs of the care system. How can that be justified? Perhaps the Minister can comment on that.

Finally, lengthy periods of detention for asylum seekers need to be thought about. The Refugee Council noted that the UK was the only country in Europe that did not have a maximum time limit for immigration detention. As noble Lords know perfectly well, thousands of people are detained each year for long periods, costing £100 million annually and affecting the health and well-being of the detainees—and, of course, many of those are children. Again, do the Government plan to right this wrong? I sincerely hope so.

After all that, I suppose that I need to say something positive. I understand that the UK has a good record on implementing the refugee resettlement programmes. Indeed, I understand that the UK can claim to be a global leader in resettlement, so we are able to do things properly. I congratulate the Government on that success and hope that they can extend that good practice to the other areas that I have mentioned.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

My Lords, as the noble Baroness, Lady Quin, has withdrawn from these proceedings, I now call the noble Lord, Lord Blencathra.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Meacher

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

[Baroness Barker (LD)]

My Lords, it has been a privilege to work again on a subject that we have now worked on several times in this House, from the original pre-legislative scrutiny and original legislation through to the post-legislative report on the implementation of the previous Bill. Apart from anything else, it shows the excellent results that can be achieved from the process that we put into scrutinising legislation and scrutinising its subsequent implementation. In light of all of that, I will say that I take a slightly different view from the noble Baroness, Lady Murphy. I think that we have done a very good job. The problem is that the legislation that came to us was fundamentally flawed, and we could not change that. But we changed the legislation where we could, and those changes will make it better.

The noble Baroness hit on two fundamental issues that are problematic. The first is the nature and scope of the Cheshire West ruling and the second is the lack of understanding of the original DoLS legislation. When it was introduced, the training for professionals—all sorts of different professionals—was lacking. Much of what has happened since has meant that we have fallen into a system that is deeply bureaucratic. A number of professionals are scared to exercise their professional judgment. Consequently, a whole bureaucracy has grown up around DoLS which, had it been introduced in the right way, would not have happened. Therefore, the noble Baroness was right to say that the Law Commission was trying to deal with that issue and could not. I have no doubt that what we have in front of us will not solve the problem. I doubt very much whether it will deal with the backlog of cases, about which people are rightly exercised.

My question is one that we were all concerned about—the resourcing for this. One of the first things that we did when we met the Bill team was to query the resourcing—half a day’s training for some doctors and no need for training for people in care homes. Much of that has got lost as we have gone deeper into the wording of the Bill. Will the Minister talk about the resourcing of training and the implementation of the code of practice? I have no doubt that, in due course, there will be further test cases that will shine a light on the deficiencies of this legislation and we will come back to dealing with the fundamental issue: how do we ensure that someone whose liberty is going to be deprived by an agency of the state can be enabled to understand their rights, and their carers enabled to understand their rights, in order that they and the professionals who work with them can ensure that everything is put in place to minimise the deprivation of liberty? If we had done that properly in the first place, we would not be dealing with the deficient legislation that we are now.

The noble Baroness, Lady Murphy, is right that we have not dealt with it, but I take some hope from a lot of the stramash, to use a Scottish word, that we have been through and the attention that has been paid to all of this by the department, by people in the sector and by the lawyers themselves. This is not the greatest job we have ever done, but what we should do today is put a marker down for the evidence that needs to be collated and gathered for the time in the future when we will, inevitably, return to this subject.

[Baroness Meacher (CB)]

I have a couple of points. Other noble Lords made detailed points about the work of this House and the contribution that noble Lords have made to the Bill—very effectively, I think. My experience, although in a sense peripheral, has been that this House has worked very effectively with both the noble Lord, Lord O’Shaughnessy, and the noble Baroness, Lady Blackwood, in their roles as Minister and with the Bill team, and has achieved a certain amount—which is all we ever expect. We do not normally expect to turn Bills upside down and back to front, but we have achieved certain things.

I will mention a couple of things for which I am grateful to the Government, if I am right that we have really seen them home. One of my concerns was the huge and growing number of people in domestic situations where very vulnerable carers are caring for very vulnerable loved ones. Of course we need some sort of safeguard to ensure that the deprivation of liberty, if it occurs, is proportionate, reasonable and all the rest of it, but I was very worried that these poor carers would have layers of bureaucracy that they really could cope with, in addition to the bureaucracy they already had to deal with. I think we had an agreement from the Government that the procedures for assessing deprivation of liberty, proportionality and the rest of it will be undertaken in the local authority’s normal care-planning process, in the work that local authority officials are already doing. That seems a very constructive way forward which will greatly benefit a huge number of carers and cared-for people. It is a small thing, but it may be quite significant.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Meacher

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I feel that I should contribute to this debate although I have no speech prepared because, in the discussion with Sir Simon Wessely that I referred to last week, I challenged him about this issue. I asked what we were doing by debating this Bill before his review came out. He was clear and while I cannot say what he is proposing, maybe I can indicate the sort of areas he is looking at. These may help to illuminate the clear differences in certain ways between the two sets of debates and legislation.

For example, he is looking at the role of the Ministry of Justice in relation to people under restriction orders. There are specific mental illness issues in that area. He is looking at how community treatment orders operate—there might be less use of such orders—and how detentions in hospital for people with psychotic illnesses operate, and so on. Those areas are, in general, probably quite distinctive to the Mental Health Act. The bit where I feel there really is a potential overlap is in the area of mental health tribunals, which I will raise when we come on to deprivation of liberty concerns in the context of specific domestic situations. I will have a proposal to make then. I will not go into it here, as it would not be appropriate.

Sir Simon Wessely’s position is clear: he feels that the Mental Health Act needs reform and I think he will have very interesting proposals to make about that. We also all agree that the DoLS system needs reform and we are discussing how that should be done. What he is doing and what noble Lords are trying to do here are both quite complex sets of reforms. Sir Simon Wessely’s view—I hope that he would agree with me—is that these two sets of reforms need to be in place for quite a period. He talked about a decade, actually. There is also the Northern Ireland situation; there are proposals for some bringing together of these things there. There is of course no Government in Northern Ireland but Sir Simon Wessely wants that Northern Ireland Government to be formed and for them to be the pilot of all this and see how that works over a period of years. We would then come forward with some proposals, as and if appropriate, for bringing these two pieces of legislation together.

I hope that I have represented Sir Simon Wessely properly. It is important for us all to be aware that we do not have the support of the person in charge of the review of the Mental Health Act when we say, “Come on, what are we doing by having this first? Surely it should all be done at once”.

[Baroness Barker]

I want to make it clear to the noble Baroness that I am not talking about bringing these two pieces of legislation together. I know some people have suggested that that should be done, but I am not asking for that. I am simply suggesting that this legislation, which makes a substantial change to what has been the basis of decision-making about best interests on the basis of harm to self, is now going to include harm to others. We were told back in the summer, when the Minister sent us a letter, that the Government were waiting for the outcome of the Mental Health Act review to see what the impact would be. We are now being told, as the noble Baroness, Lady Stedman-Scott, confirmed, that that basis of decision-making is changed by this legislation. It is linked to the necessary and proportionate assessment that people will have to make. I think that is a major change that will perhaps result in the detention of quite a number of people. I do not think it is unreasonable for the Government to wait until Sir Simon Wessely has published his report to ensure that the two pieces of legislation are not drifting further apart.

Health and Social Care Bill

Debate between Baroness Barker and Baroness Meacher

Monday 5th December 2011 Lords Chamber

[Baroness Barker]

My Lords, I shall speak to Amendment 237A, which is in my name. The justification for this legislation is that it does three things. It enshrines the Government’s stated policy that health services should be built around patients and that all decisions about patients should be taken with them. No decision about me without me: that is the phrase that we have heard. The second justification is that the Bill empowers clinicians and local authorities to commission health services that meet the needs of all groups in the population and reduce health inequalities. The third justification is that the Bill will enable the National Health Service to deal with the pressure on it because of demography and increased longevity among the population by being more efficient and more effective. Those are the justifications for the Bill. It is with that in mind that I go back to a discussion that many noble Lords here this evening had at considerable length during the passage of the Mental Health Act 2007. We were all on different sides of the Chamber then, which is not a point to be missed, I suspect.

The amendment seeks to include in the decision whether someone should be placed under a community treatment order—a compulsory order, as alluded to by the noble Lord, Lord Patel of Bradford—an assessment of whether someone who is suffering from mental illness may yet have capacity to make a decision about their treatment. To put it in lay terms, someone may be ill but still retain sufficient insight into their illness to make decisions about their treatment and in particular about whether they should be subjected to compulsory treatment. It is a similar, although legally slightly different, test of capacity to that in the Mental Capacity Act, with which noble Lords will be familiar.

It is the same provision that occurs in the Mental Health (Care and Treatment) (Scotland) Act 2003. Without going back over the ground that we covered in much greater depth in 2007, when the Scottish authorities prepared their legislation, unlike the Government of the time in England they did not simply go around a lot of different jurisdictions throughout the world where there are variants of community treatment order, pick elements that they liked and put them together. They went through a long and considered process, looking at how to bring their concept of a compulsory community treatment order into being. They did so with a greater degree of protection for people who might end up in effect being subjected to treatment against their will indefinitely. They included this concept of impaired decision-making within the Act.

Why should we revisit this decision? I was about to say that it was made by this House but it was not. This House agreed that we should include the concept of impaired decision-making; it was another place that removed it. The simple answer is statistics. When we debated what was then just a theoretical proposition that there would be community treatment orders, we were repeatedly assured by the then Government that they would be applied to only a very small group of people. Noble Lords will remember that it was envisaged at that time that there would be a few hundred people who were routinely referred to as “revolving door patients”—those patients who were in and out of acute care.

What has happened? In the first year of operation, 4,000 people—not 300—were put on to community treatment orders. There are now 7,000 people on them. I admit that we are still only a few years into the programme, but the number suggests that, first, the law is being much more widely applied than it was ever envisaged that it would be and, secondly, that practitioners are taking a precautionary approach to putting people on to compulsory treatment. In short, I suspect that a number of practitioners decide that the consequences of taking somebody off a community treatment order are potentially so hazardous to those practitioners that they are keeping people on indefinitely. That means that the situation that some of us foresaw whereby people were put on to community treatment orders from which they are unable ever to escape is happening. That seems to me to fly in the face of all the underpinning principles of this Bill.

At a time when we know that the resources of the National Health Service are going to be stretched and put under pressure in a way that they never were before, putting people on to treatment orders that they may not need is wrong. We know that lots and lots of people out there are suffering various degrees of mental distress, particularly those for whom their mental distress is not sufficiently serious that they are subject to compulsion, who desperately wish to get themselves into treatment and to see counsellors and therapists but cannot. Why take our already stretched resources and apply them to people who may not need them? I think that is wrong.

Why is this measure included in the Bill? I think it is unlikely that we will have a major revision of mental health legislation for some considerable time. In fact, there is a very good reason why we probably should not do so in that significant changes in mental health legislation happen not quite once in a generation but over a very long period when treatments and therapies have developed. Therefore, as I say, I do not envisage that we will have a major revision of mental health legislation for some years. However, I do not know whether that will be the case as I am not party to the Government’s proposals in that regard.

In the mean time, it appears that we are going to subject thousands of people to treatment that may be wrong—the only people in the country who are subjected to medical treatment against their will. It seems to me that we cannot let that carry on without looking at it in considerable detail. I suspect that the Minister is unlikely to want to go into this area at this stage, but if he cannot accept this amendment can he give a commitment that the issue will be kept under review and that we will return to it at some stage even though another large piece of mental health legislation may not be forthcoming?

[Baroness Meacher]

I apologise to the Committee and to the Minister for not being present in these debates. However, I cannot resist supporting the noble Baroness, Lady Barker, on this issue, which, as the Minister knows, we debated at length when the Labour Party was in government. I, for one, strongly supported the idea that people leaving hospital should not be put under a community treatment order, most particularly if they are no threat to others, are competent, can give consent and can make rational judgments. Large numbers of people under community treatment orders suffer with depression and the only persons at any risk at any time are themselves. At a time when we so strongly support the principle of autonomy and the right to some control over medical treatment in general, it feels completely inconsistent to throw all those principles away in this one area and say, “No, doctor knows best. Whatever you say and however competent you may be, you have no right to make a decision about the treatment”.

Having said that, I understand Ministers feeling very concerned about having the same principles apply if someone might—if they become unwell again—be a real, serious and major risk to other people. Therefore, my plea to the Minister is that he gives serious consideration at least to those who are no risk to anyone else, because the noble Baroness, Lady Barker, is right to say that while these provisions are on the statute book it is almost impossible for doctors not to impose these community treatment orders or for them then to rescind them because, if something goes wrong, they will be in the most appalling trouble. I will say no more but I wanted to add a strong voice to the comments of the noble Baroness, Lady Barker.