Northern Ireland: Abortion
Baroness Gould of Potternewton Excerpts(11 years, 2 months ago)
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Baroness Randerson
The noble Baroness will be aware that this case raises some very difficult issues and is very distressing. However, the current difference in legislation means that women travelling to England for an abortion generally make their own arrangements and fund the procedure themselves. To make exceptions to that would be a major departure from the system of residence-based responsibility and the separation of powers between the health services in the four jurisdictions of the UK. The noble Baroness will recognise that this is a sensitive issue that the previous Labour Government, when they were putting in place the devolution settlement, believed should be left to the people of Northern Ireland to decide for themselves.
Baroness Gould of Potternewton (Lab)
My Lords, I am a little surprised by the Minister’s first reply and I would be grateful for clarification. In 2011, the Government supported a report from the Irish Family Planning Association to the CEDAW periodic review saying that there should be a revision of abortion law in Northern Ireland. I fail to understand why the Government did that if the Minister is right in her argument. I add that this year, again, CEDAW has told the British Government that they need to expedite an amendment to the anti-abortion law in Northern Ireland and create a law to ensure that legal abortion covers circumstances such as threats to a woman’s health and cases of serious malformation of the foetus. As a signatory to CEDAW, when are the Government going to honour their commitments?
Baroness Randerson
I think it is important that the UK Government observe the devolution settlement. However, I think it is also important, as the noble Baroness mentioned, that there is consideration of the situation in Northern Ireland. I draw the attention of noble Lords to the comments of David Ford, Justice Minister in the Northern Ireland Executive, who has made it very clear that this issue needs to be reconsidered. Indeed, the Health Minister in Northern Ireland has made similar comments about the current legislation and its applicability in this case. However, it is not an issue for the UK Government.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Gould of Potternewton Excerpts(12 years, 11 months ago)
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Baroness Gould of Potternewton
My Lords, in moving Amendment 62 I shall speak also to Amendments 63 to 67, 69A and 70A. I am delighted to follow the noble and learned Baroness and the previous debate. This is an added dimension, which also relates to a very small number of very vulnerable people. I shall try to explain it simply because it is complex but I will do so as well as I can, not being an expert in immigration rules, rather as the noble Lord, Lord McNally, is not an expert in the subject. However, there are principles here that it would have been impossible to avoid.
I start with the purpose of Amendments 62 to 67. These six amendments need to be considered together. They extend the legal aid protection provided by paragraph 25 of Part 1 of Schedule 1 to victims of domestic abuse whose immigration status is dependent on their abusive partner. Paragraph 25 currently provides for legal aid for migrant victims of domestic abuse whose leave to enter or remain is dependent on their relationship as the partner of a British citizen or person with indefinite leave to remain so that they may have legal aid to help them address the consequences to their immigration status of escaping the abusive relationship. These amendments would extend the same protection to migrant victims of domestic abuse whose immigration status is dependent on a partner who is exercising European free movement rights or on a partner who has limited leave to enter or remain. The Government have indicated that they are considering the first of these extensions—that related to European free movement rights—but not the second. I must add that the amendments stop short of providing legal aid in relation to immigration for any victim of domestic abuse but are restricted to those who are lawfully in the UK, where their lawful presence is dependent on that very relationship in which they are experiencing abuse.
Several organisations, including Rights of Women, the National Federation of Women’s Institutes, Southall Black Sisters and the Moroccan Women’s Centre, have highlighted the situation of victims of domestic abuse who face being trapped in an abusive relationship because their immigration status is dependent on that relationship and they fear the immigration consequences of seeking to escape. However the Government have already amended the Bill to provide legal aid for some of these victims. For instance, it now provides for victims who are dependent on British citizens and settled persons. The Government have agreed to give further consideration to other victims as yet left out of the Bill, such as those dependent on European Economic Area nationals and others exercising free movement rights, those dependent on migrants with limited leave to enter or remain and those dependent on migrants whose status is irregular. Each of these classes of victim face the same or similar difficulties to the class of victim for whom the Government have now made provision in the Bill. Those difficulties were described by the Minister for Legal Aid. He said:
“There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status. The type of trauma that they might have suffered will often make it difficult to cope with such applications. We also appreciate that people apply under great pressure of time, and access to a properly designated immigration adviser is a factor”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]
Therefore, the Minister identified four factors relevant to why legal aid should be provided in the cases to which he was referring: the risk that the victims will stay trapped in abusive relationships for fear of jeopardising their immigration status; the trauma they may have suffered which often makes it difficult to cope with the application; time pressures that apply to immigration proceedings; and difficulties of access to a properly designated immigration adviser. These factors are borne out in that domestic abuse-related immigration applications are far from straightforward.
Further, the exclusion of some victims from legal aid offends the Government’s own factors which they identify as needing to be taken into account. They include the fact that the UK Border Agency’s record in dealing with these cases is especially poor with some 61 per cent to 69 per cent of refusals being overturned on appeal; the gathering and presentation of evidence, with associated costs and risks, is often necessary for success; many applications are, sometimes wrongly, refused by the UK Border Agency on the grounds of inadequate evidence; to escape abusive relationships victims need to understand the implications for their immigration status; victims need immigration advice; only regulated advisers can provide this advice and without advice and assistance many victims will not find the confidence to escape their abuser. The Bill risks the undesirable outcome that victims of domestic abuse will remain, with their children, in abusive relationships for fear of the immigration consequences of escaping those relationships. The fact that the Government have decided to deal with some aspects but not all for people in this situation adds to the confusion. I hope that the Minister will clarify that. However, I genuinely believe that Amendments 62 to 67 would overcome the problematic and dangerous outcomes that will occur due to the present state of the Bill.
I turn now to Amendments 69A and 70A that together would ensure that those who have experienced gender-based violence are able to access immigration advice and representation and are not placed at risk of experiencing further violence and abuse. The amendments would protect children, victims of domestic violence and trafficking, as well as other groups who are at risk of gender-based exploitation such as migrant domestic workers to whom the noble and learned Baroness referred. They would also protect others whose ability to represent themselves in an immigration law issue is impaired because of their age, illness or disability.
The amendments would also confer a power to specify other classes of persons in regulations. The “specified person”, as referred to in Amendment 70A would include children, victims of trafficking and victims of gender-based violence—men as well as women. The Government made the decision to bring back into scope legal aid for victims of domestic violence applying for indefinite leave to remain in the UK under the domestic violence rule—rule 189A of the Immigration Rules. Announcing that decision, the Minister for Legal Aid, said,
“There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status”.—[Official Report, Commons Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]
How that can be said over and over again and yet not followed through, I find difficult to accept.
The concerns raised by the Minister apply equally to other vulnerable applicants in immigration cases who have experienced or are at risk of violence and abuse, who simply cannot be expected to represent themselves in applications effectively because of the trauma they have experienced. These include individuals who have been trafficked into the UK for the purposes of sexual or other exploitation, and migrant domestic workers—many of whom, as the noble and learned Baroness said, are trafficked into this country and are extremely vulnerable to exploitation and abuse because of the invisible nature of their work that takes place in private households, and who, because of their dependency on their employers for their work, accommodation and immigration status, can be exploited by their employers and find themselves in a very similar position to victims of domestic violence.
I am told that there were around 15,000 migrant domestic workers issued with a visa to work in the UK in 2010. I am horrified to hear that there might be a move to remove their right to a visa. Research shows that 41 per cent of migrant domestic workers cite abuse or exploitation as their reason for changing their employer, but under the Bill legal aid will not be available for them to seek advice on how to regularise their immigration status or, if they wish, to change their employer.
Equally, victims of domestic violence whose immigration status may not be dependent on maintaining an abusive relationship with their spouse may also be vulnerable to remaining in a violent relationship if they cannot access legal aid to regularise their immigration status. Rights of Women indicates that it receives many calls to its immigration and asylum law advice line from women whose leave is not dependent on their spouses, yet their insecure immigration status is still used by the perpetrator as a tool of control.
All these cases raise complex issues and affect particularly vulnerable women whose fundamental human rights, including the right to be free from inhuman and degrading treatment, are at risk. Yet what sets these cases apart from other areas of law is that there are no alternative advice providers because it is a criminal offence for anyone to give immigration advice or services unless they are qualified to do so. Removal of legal aid for the cases such as those I have identified will place women at greater risk of violence and prevent those with valid legal reasons for remaining in the UK being able to access and benefit from their legal rights.
This is not a marginal problem, because between 1 April 2009 and 31 March 2011 there were 1,481 referrals to the National Referral Mechanism, the national framework for the identification of human trafficking in the UK. We know that, in reality, the figure for individuals trafficked is likely to be higher. A further implication of the Bill is that they will not be eligible for legal aid because of the implications of being referred into the National Referral Mechanism, and therefore their informed consent for referral may be questioned.
My information from Rights of Women is that it hears countless testimonies from women whose immigration status, which is often reliant on their abusers, has restricted their ability to leave a violent situation and access the advice and support services that they need.
Without legal advice and representation, domestic violence victims, migrant domestic workers and trafficked victims remain reliant on misinformation from their abusers about their legal rights and status and are trapped and dependent upon violent relationships, placing their lives at risk. The amendments together would ensure that those who have experienced violence are able to access legal aid for immigration advice and representation.
For too many women, their insecure immigration status is still used by the perpetrator as a tool of control. That cannot be justified. The amendments would eliminate that position. I beg to move.
Lord Wallace of Tankerness
My Lords, first, I thank the noble Baroness, Lady Gould of Potternewton, for introducing the amendments, and I thank the noble Baroness, Lady Gale, who encouraged me to listen. I hope to indicate later that in some respects we have already been listening.
Amendments 62 to 67 propose to make an amendment to paragraph 25 of Part 1 of Schedule 1. This paragraph provides for those applying for indefinite leave to remain on the grounds that they have limited leave to enter or remain as a partner of another individual present and settled in the United Kingdom and that the relationship has broken down permanently as a result of abuse. Such matters are to be within the scope of legal aid. The arguments regarding partnerships which have broken up and the power relationship that can result were very well made.
Amendment 62 seeks to extend the scope of legal aid to those applying for “leave to remain” as opposed to “indefinite leave to remain”. Amendment 65 seeks to remove the need for a person’s partner to be present and settled in the United Kingdom, and Amendments 66 and 67 are consequential amendments, removing the definitions of “indefinite leave to remain” and “present and settled in the United Kingdom”. We do not believe that these amendments are necessary. The provision as currently worded in the Bill is directly linked to Rule 289A of the Immigration Rules, which deals with applications for indefinite leave to remain by victims of domestic violence on a limited spousal visa. This is deliberate: other than via the Immigration (European Economic Area) Regulations 2006, the appropriate route for someone to apply would be through the Immigration Rules. Where the person’s partner has only a temporary form of residence, it is not clear that they intend, or indeed whether they would have a right, to reside more permanently in the country. As such, we do not believe that these cases require funding.
Amendments 63 and 64 relate to partners of EEA nationals, known as third-country nationals, and are similar to an amendment raised in the House of Commons—I think that the noble Baroness mentioned the debate that took place there either in Committee or on Report. These amendments are intended to bring within the scope of civil legal aid services applications from partners of EEA nationals who require confirmation of their right to reside in the United Kingdom where their relationship has broken down permanently as a result of domestic violence, as well as any subsequent appeal. EEA nationals and their family members, if from a third country, have a long-term right to reside in the United Kingdom if they are economically active or are able to support themselves without becoming an unreasonable burden on public funds.
The Immigration (European Economic Area) Regulations 2006 make provision for family members to remain in the United Kingdom; that is that their right to reside can continue if they cease to be a family member of an EEA national because their marriage or civil partnership, on the basis of which they are a family member of an EEA national, breaks down as a result of domestic violence. The application is different for those people who apply for indefinite leave to remain under the domestic violence provisions in the Immigration Rules, where the rules that apply are different.
Nevertheless, as has been pointed out, and as my honourable friend, Mr Djanogly, has said, we will look further at this point. I indicated earlier that we believe that some of the initial concerns raised are covered and we do not believe that the amendments are necessary. However, it is only reasonable, in the light of what was said by the noble Baroness, Lady Gale, that we ensure that we have addressed the points which she made in that regard.
Amendments 69A and 70A deal with making legal aid available to certain categories of vulnerable persons for immigration matters. I think there are another two amendments in this group which have not been moved but I shall try to deal with them. Part of Amendment 70A —that which seeks to cover those persons who have suffered domestic violence at the hands of spouses or partners—is already covered by the Bill at paragraph 25 of Part 1 of Schedule 1, where the application for indefinite leave to remain in the United Kingdom meets the requirements of that paragraph. We decided that, on reflection, the issues faced by those facing domestic violence were such that special provision should be made for them. Without legal aid, there is a real risk that such people will remain trapped in an abusive relationship for fear of jeopardising their immigration status. Furthermore, they have only a limited window in which to submit their immigration application when they leave their partners and after that period their access to public funds ceases. However, these factors do not apply to other categories of vulnerable persons that have been suggested in the amendments.
As we have indicated on numerous occasions in these debates, we believe that we should target legal aid on those who need it most. In general, we want to prioritise asylum cases, which can be about life and death, over immigration cases. I do not deny for a moment the importance of such cases to the individuals concerned, but they do not raise the same issues.
Children will not normally be applicants in asylum and immigration cases, as they are usually considered as part of their parents’ application. Child applicants are much more likely in asylum cases, for which, of course, legal aid will remain available. Most immigration claims are straightforward and, in the majority of cases, we expect the child, with the help of a guardian, to be able to complete the process without recourse to specialist help. The noble Baroness, Lady Gale, asked about children's applications, their interaction with Article 6 and whether exceptional funding would be available. The answer, as I think she anticipated, is that it would not. The position in the Bill is that exceptional funding should be granted only where it is required by law; that is that denying legal aid would risk a breach of an individual's rights under EU law or the ECHR. Case law has been consistent: that immigration cases do not, as she indicated, involve such a determination and, as such, exceptional funding would not be available.
I have sought to try to give some reassurances and I urge the noble Baroness, Lady Gould, to withdraw her amendment.
Baroness Gould of Potternewton
I thank the Minister for his reply. In some ways, I am partially encouraged by the reply but I also find it extremely complex. I need to go away and read it very carefully and then I shall be able to answer whether I am satisfied or not. In the light of that, I beg leave to withdraw the amendment.
Fixed-term Parliaments Bill
Baroness Gould of Potternewton Excerpts(13 years, 9 months ago)
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Baroness Gould of Potternewton
My Lords, before indicating my thoughts about the Bill, perhaps I may say gently to the Deputy Prime Minister, Mr Clegg, that between 1832 and now there have been a number of extremely significant constitutional changes, not least the giving to the people of Scotland and Wales a voice in their own decision-making and, perhaps even more significant, the introduction of the universal franchise and the giving of the vote to women.
It has been fascinating to listen to some of the lessons from history that we should take on board as we go through the process of scrutinising the Bill and to hear of some of the problems that have arisen when previous elections have been declared. As many noble Lords have said, this Bill has been cobbled together in haste, clearly with narrow, short-term party interests in mind, without a Green Paper, White Paper or pre-legislative scrutiny, and to a very tight timetable—what the Political and Constitutional Reform Select Committee in the other place referred to as a “scrutiny bypass”.
I can see no cause for speed, not least because of the longer parliamentary Session. It was clearly no coincidence that the Leader of the Commons announced the extension of the Session on the day of the Second Reading of this Bill. According to the Deputy Prime Minister, it was done to align the Sessions of this Parliament to the fixed-term provision. That produced ill thought-out proposals, as was clearly shown in the embarrassing U-turn that had to be done by the Deputy Prime Minister in response to the furore that followed the coalition agreement’s statement that a “binding Motion” would be put before the House of Commons stating that the next general election would be held on the first Thursday of May 2015 and that a vote of 55 per cent of Members would be needed to bring down the Government. That proved to be an unsustainable proposition. The “binding Motion” disappeared and the 55 per cent vote became a two-thirds majority. I mention that because it shows the confusion that seems to have surrounded the whole Bill right from its inception.
A statement made by the current Prime Minister during the general election campaign has also disappeared. He said that if there was a change of Prime Minister during the course of a Parliament—clearly he was trying to have a go at Gordon Brown—there should be a general election within six months. That, we are told, has been superseded and improved on by this Bill. It may have been superseded, but nothing could be improved by this flawed piece of legislation.
It is a great pity that a Bill that I support in principle is so flawed in detail. I have been committed to four-year fixed-term Parliaments since it became Labour Party policy in the early 1990s, as ironed out by the committee chaired by my noble friend Lord Plant, in which both the noble Lord, Lord Rooker, and I were involved. The policy was ultimately carried by the Labour Party conference. We had long discussions as to how to arrive at a fixed-term Parliament and how to arrive at a four-year fixed-term Parliament. We had to ensure the integrity of the proposal. It was made clear that it would have to be built into legislation to allow for an election to be triggered when a Government lack the support of Parliament and would operate under a strict, clearly defined set of rules, unlike the sort of confusion that we seem to have in this Bill.
As has been said, there is nothing unique about the introduction of fixed-term Parliaments. They apply to our devolved Parliaments and Assemblies and to local government. They have been introduced in most western European states, the US, the EU, most of the Australian states and in most of the provinces of Canada, as well as at federal level. But in all those instances there are safety valves that have been either legislated for or provided by constitutional conventions of no confidence motions leading to dissolution.
There are reasons why, as a past party organiser, I think that a fixed-term Parliament is a good thing. As well as removing the power of the Prime Minister, it gives clarity to our electoral procedures. It will enable electoral registration officers to schedule their work and put current deadlines into a more coherent timetable. It will give time to increase voter registration and without doubt it will bring clarity to the timing of the electoral expenditure limits, to which the noble Lord, Lord Rennard, referred, by enabling people to work to fixed dates. It might also bring some sensible construction to the legislative programme, building in time for consultation and pre-legislative scrutiny—something denied to this and the other constitutional Bills that have been rushed through Parliament.
My main objection to the Bill is the proposal to turn a five-year maximum into a five-year norm. Well, it might be five years, or it might be five years and two months in exceptional circumstances. I ask the Minister whether it can be envisaged that those exceptional circumstances—and we do not know what they might be—could further extend the period, with the approval of both Houses, of course.
As has been spelt out, since 1945 three years and 10 months has been the average for a Parliament. Since 1979, four Parliaments have been around for four years and, exceptionally, three lasted for five years. Overall, four years has been the norm. The Deputy Prime Minister tried to negate these facts by misinterpreting the words of Lord Asquith during the passage of the 1911 Parliament Bill. The words to me are quite clear. Lord Asquith said that a five-year term,
“probably amounts in practice to an actual legislative working term of four years”.—[Official Report, Commons, 21/2/1911; col. 1749.]
Those words could not be clearer and to cite them as a reason for five-year terms I find extraordinary.
Here we have yet another somersault by the Liberal Democrats, who were long-term supporters of four-year fixed-term Parliaments, as approved by their 2007 party conference, and who vehemently supported the Bill introduced by David Heath MP for four-year Parliaments. When and why in the negotiations between the Conservative and Lib Dem teams did four years become five years? We are told that it was a matter of judgment, but perhaps we could have a little clarification of how that judgment was arrived at. I am not sure whether we will get it, because we are still waiting to be told why the number of MPs had to be 600.
The arguments for four years as opposed to five are quite evident. They reflect devolved control and international experience. As several constitutional experts made clear as witnesses to the Constitution Committee, that period is by far the most accountable time for a Government to sit. I hope that when we have the debates in Committee we can have much further discussion as to the benefits and values of a four-year Parliament. I do not accept the argument that we would end up having the last year solely discussing when an election would be. That happens even with fixed five-year Parliaments. There is a lot more confusion about when the election might be and a lot of pressure is put on. I cannot accept arguments that say that we should not have any timing or that we should go for five years.
I do not wish to intrude on the question of the date, because I am sure that my friends from Scotland, Wales and Northern Ireland will wish to do that for themselves, but I make reference to the Scottish elections review that was carried out by my namesake, although no relation, Ron Gould. The review followed the holding of the Scottish Parliament and local elections on 3 May 2007, when 140,000 electors lost their vote. His comments are equally applicable to this debate. He said that,
“the voter was treated as an afterthought”,
in the planning and organisation of those elections. This has clearly not entered the Government’s thinking. He also said that Ministers should take,
“voters’ interests as the primary objective”.
Again, it appears that the voters’ interests have been ignored.
The Scottish Parliament decoupled the Scottish parliamentary elections from the local elections only to find the principle undermined by the fact that the general election will be held on the same date. I appreciate that an offer has been made for discussions with the Scottish Parliament and the devolved Assemblies to ask and perhaps suggest that they might wish to look at their dates, but it would be much simpler for this Bill to change its date than to go through the complicated process of asking the Scottish Parliament and devolved Assemblies to look at their dates. It is a great pity that it did not occur to the Government to have discussions with the devolved areas prior to the introduction of this Bill. Whatever happens, whether we change the date in this Bill or whether the Scottish Parliament and the devolved Assemblies change their dates, there will be a serious impact on devolved institutions. Asking people in those areas to elect two different Executives on different electoral boundaries—and there may well be different manifestos—on the same day could be a recipe for disaster.
What I find absolutely confusing about this Bill—I have a very simple mind and I like things to be simple—are the provisions in Clause 2. I do not intend to go into them as so many have done, but the complexities of that clause and the debate that we have had today have made my confusion even worse. I would like somebody to say why we cannot have a simple solution. The noble Lord, Lord Cormack, in his excellent maiden speech, made that point very clearly. It seems to me that what we are looking for is simplicity, not confusion, when we are building legislation. Surely there is something wrong if we can have confused legislation. My other point is that, if there is to be a vote of no confidence in a Government, surely it is then for the electorate, not MPs, to decide who the new Government should be.
My noble and learned friend Lord Falconer said that he did not think that there was any difficulty or problem in respect of the courts on what is a vote of no confidence and who can take a confidence Motion. However, I would like greater clarity. I absolutely respect his knowledge as compared to mine, which is nil, but this is all the more reason why I would like him to explain why he thinks that the Speaker’s certificate could not be challenged in court. The paper from the House of Commons Library goes even further. The lack of clarity creates the remote possibility of a lame-duck Government unable to secure their business yet imprisoned in office by an Opposition unwilling to trigger an election.
The legislation also fails to deal with the issue of prerogative powers. On the one hand, the Bill removes the prerogative powers of the Queen to dissolve Parliament, but on the other hand it does not remove the Queen’s prerogative power to prorogue Parliament. That surely cannot be right. This could be interpreted as a get-out for a Prime Minister, as it makes it possible for a Prime Minister facing a vote of no confidence that he is likely to lose to go to the Queen and seek the prorogation of Parliament to avoid that crisis and to buy time to restore a coalition. Another scenario could be where the Government had lost a vote of confidence. During the 14-day grace to form a new Government, they would have an opportunity to prorogue Parliament expressly to prevent an alternative Government and thereby trigger a general election. I find it all extremely confusing and I cannot understand why we cannot have a simple vote of confidence.
In conclusion, I can only reiterate the words of my right honourable friend Sadiq Khan, who said that,
“unfortunately the coalition has hijacked a sensible and progressive idea, amended it for its own means and tried to rush through legislation preventing a proper, wide-ranging debate”.—[Official Report, Commons, 18/1/11; col. 797.]
There has been no consultation and scrutiny. The Bill is a short-term compromise to hold together two coalition parties. Far from being a careful analysis of how to redesign our constitution, it is the product of a political imperative in an attempt to ensure survival of the coalition to a full term. To me, it seems like a piece of—and I use the word advisedly—gerrymandering in that it does not, as has been stated, take the absolute power from the Prime Minister that we are told it should do. It gives extra power to the Speaker and I wonder whether that is appropriate—I do not accept the analogy given by the Minister in relation to money Bills. Nor does it strengthen the powers of MPs in the other place. I hope that when the Bill leaves this House it will be more coherent and completely simplified and that it will provide for four-year fixed-term Parliaments.