Immigration Bill
Baroness Lister of Burtersett Excerpts(10 years, 7 months ago)
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Lord Watson of Invergowrie (Lab)
My Lords, I shall speak to Amendments 16 and 20 in this group, which appear on the Marshalled List in my name.
Amendment 16 would ensure that the Bill recognised that the promotion of the best interests of the child is not simply a matter of the rights to be interfered with being in the public interest but that the promotion of those best interests is, in itself, in the public interest. In its current form, Clause 18 does not allow for proper consideration of the best interests of all children, as required by UK and international legislation. Despite government Amendment 58 reiterating their commitment to the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, Clause 18 does not make clear the need for the best interests of children to be a primary consideration in any Article 8 case involving a child. That includes those who are not British citizens and those who have not lived in the UK for at least seven years.
Amendment 58 does not address the concerns raised by non-governmental organisations, including the Refugee Children’s Consortium, about the lack of an explicit provision in Clause 18 to have regard to children’s best interests. What is required is a provision stipulating what judges must have regard to in the public interest when considering Article 8 of the European Convention on Human Rights in respect of family and private life.
Courts and judges are not under a statutory obligation to comply with the Section 55 duty. Instead, they review the Home Secretary’s decisions and actions in the light of her own duties. The courts have made it clear that children’s rights are a clear public interest consideration in addition to their own personal interests. As the Joint Committee on Human Rights notes in its scrutiny of the Bill, Parliament is entitled to put into primary legislation that which it considers to be in the public interest. The lack of a clear statement setting out the importance of children’s best interests as a factor to be considered creates a risk that children’s best interests will not be taken into account as a matter of public interest to the same degree as those public interest considerations listed in Clause 18. In its evidence to the Bill Committee, the Immigration Law Practitioners’ Association stated that Clause 18 directs attention to some factors at the expense of others. The most obvious missing factor is the best interests of children.
In 2012, the Supreme Court held in the case of HH—UKSC 25—that children’s interests are also public interests and not just private rights, stating,
“although the child has a right to her family life and all that goes with it, there is also a strong public interest in ensuring that children are properly brought up”.
In this respect, the Bill is not consistent with established case law and gives the impression that children’s interests amount to no more than the private and personal interests of an individual and their family. They clearly amount to more than that and this should be reflected in the Bill.
Amendment 20 reflects the fact that “unduly harsh” is an incorrect test of the context of considering what is best for a child, whereas “disproportionate” is known and well understood. New Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by this Bill and relating to Article 8 of the European Convention on Human Rights, states:
“Exception 2 applies”—
where there is—
“a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.
The “unduly harsh” test in relation to children is not consistent with the best interests principles. This test of “unduly harsh” is a legally defined term within the context of refugee protection and internal relocation. I should like to cite an example and I do so in due deference to the noble and learned Lord, Lord Hope. I hope that he will not mind if I quote from a case over which he presided in 2007—the case of the Secretary of State v AH (Sudan) and others. In that judgment, the noble and learned Lord was quoted as having stated in another case:
“‘The question ... is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally ... it will not be unreasonable to expect him to move there’”.
However, I do not believe that that test can be applied within the context of considering children’s best interests. Surely a child should not be expected to live a relatively normal life judged by the standards that prevail. That is not and, I submit, cannot be a best interests consideration. When considering a child’s best interests, a range of issues need to be taken into account, such as the child’s immediate safety and their access to, and the quality of, vital services such as healthcare and education. In addition, under the UN Convention on the Rights of the Child, every child has a right to be cared for by his or her parents. In fact, Article 9 says:
“States … shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.
The audit carried out by the UNHCR last year of Home Office procedures highlighted that there is no systematic collection or recording of the information necessary and relevant to a quality best-interests consideration in family cases. This includes a lack of any mechanism to obtain the views of the child and to give those views weight in line with age and maturity. Research carried out by the Greater Manchester Immigration Aid Unit into unaccompanied children’s asylum cases found that in 24 of 34 cases analysed, the Home Office failed to carry out any determination of the child’s best interests at all. The Joint Committee on Human Rights highlighted similar concerns in its scrutiny of this Bill, noting that without further clarity,
“there is a danger that front-line immigration officials … will be unclear about the relationship between the children duty in s. 55 and the new tests … which use different and unfamiliar language”.
The Government have said that, despite the introduction of tests in the courts, the courts would still be bound by the duty to promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 for all cases involving children. However, Clause 18 is likely to add further confusion, not least for decision-makers, as to how best interests are to be considered. Therefore, I believe that effective judicial oversight is crucial in ensuring that children’s best interests are taken into account in any case involving a child, and these considerations need to be made clear in the Bill.
In conclusion, considering whether it would be duly harsh to separate a child from his or her parent is inconsistent with the obligations to consider the child’s best interests. Perhaps I might invite the Minister to explain just what he understands “duly harsh” and “unduly harsh” to mean. At precisely what point does “duly harsh” become “unduly harsh”, and who decides where the line is crossed? The use instead of the term “disproportionate” at least allows for a balancing exercise within the well established approach to interference with Article 8 rights, which must include consideration of best interests. I very much hope that the Minister will take these points on board and I look forward to his response.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to speak to Amendment 21, supported by the noble Lord, Lord Pannick, and now, I believe, by the noble Lord, Lord Roberts, and perhaps in spirit by the right reverend Prelate the Bishop of Leicester.
First, however, I welcome Amendment 58 in the names of the noble Earl, Lord Listowel, and the noble Lord, Lord Taylor of Holbeach. This addresses one of the concerns raised by the Joint Committee on Human Rights, of which I am a member, as to how the Bill’s provisions were to be read alongside the Section 55 duty to safeguard and promote the welfare of children. But, sadly, as my noble friend has already said, it does not meet our related concern that Clause 18 should make explicit that the best interests of children must be taken into account as a primary consideration. I would be grateful if the Minister could explain on the record the implications of Amendment 58 for Clause 18, building on what the noble Lord, Lord Taylor, said earlier. As it is, I am still perplexed as to why the Government refuse to accept the best interests amendment, given that the Minister said very clearly in Committee:
“We believe that the children’s best interests must be a primary consideration”.—[Official Report, 5/3/14; col. 1384.]
Lord Hope of Craighead
My Lords, I added my name to the noble Lord’s amendment because I, too, find it difficult to know quite how the court will deal with a particular case where it feels that more than little weight should be attached to the various matters referred to in the various paragraphs that are under consideration. It is quite striking when you look back—as I invited the noble and learned Lord to do a moment ago—to the earlier part of new Section 117A, that there is no attempt to modify, appeal or amend Section 6 of the Human Rights Act itself. If you go to Section 6, of course it takes you back to Section 2, which tells the court that, in considering whether there is a breach of the duty under Section 6, it must take into account decisions of the Strasbourg court.
It is not inconceivable, although it may be unusual, there could be a real problem for a court which is following the Human Rights Act directions and is trying to take account of what one finds in new Section 117A, bearing in mind the point that the noble and learned Lord made to me not very long ago about the purpose of setting this out in the Bill. I think that I entirely understood him to say that the purpose of this was to lay down clear guidance to the court, which the court is expected to follow. I absolutely understand the reasons why the Minister says that, but that makes it all the more important, I respectfully suggest, for the Government to avoid the temptation to be too prescriptive about the conclusions that must be reached.
The problem that comes up so often when one thinks about this sort of thing is that legislation is a fairly blunt instrument. Last week, we debated the IPP legislation; the previous Administration set out tests that the judges were required to apply in sentencing prisoners to indefinite terms of imprisonment, but it turned out that in practice the judges had to sentence people to draconian sentences more often than they would have done if left to themselves, which created a very real administrative problem for the Government. That is an example of how a blunt instrument can be too blunt and can avoid dealing with a case in the way that Lord Bingham of Cornhill explained in the case of EB (Kosovo), to which I was also a party.
It really is important to avoid being too prescriptive. Use of the word “normally” gives us that little bit of leeway. If it is not there, the court is driven to finding another way round the problem and, if it finds the prescriptive language in the various subsections that we are looking at, it will have another look at the way in which the whole chapter was introduced by the phrase to which I drew attention earlier: “must have regard to”. Then it will say, “All right, it’s a rule, but it’s not something that we must follow because we have only to have regard to it”. That takes us back to the debate about the Strasbourg court that I was talking about; those who do not particularly like to be told what to do by Strasbourg would rather not have regard to it, because they do not feel that they are obliged to.
If the Minister would like, as I think he would, to have courts regard these as principles or rules to which they should always have regard in the interests of the public at large, I suggest that we should avoid the trap that has been created, otherwise the courts in these unusual cases will feel that they have to find another solution. That may, in the longer run, be more damaging to the overall package that has been put forward in the interests of trying to solve this problem. Once you undermine the basic philosophy that the Minister is putting across, which I understand, by creating this trap for the courts in these particular cases by telling them what the conclusion must be, you begin to devalue the whole package. I think the Minister would rather not do that. That is why I felt that I should support the noble Lord, Lord Pannick, and his amendment.
Baroness Lister of Burtersett
I speak briefly in support of the amendment. The noble Lord, Lord Pannick, referred to the letter from the Minister, which said that this is not a novelty and then gave various examples. However, it seems to me that the examples are rather different in kind. They said “particular weight” rather than “little”. I refer back to the report from the Joint Committee on Human Rights, which acknowledged that,
“Parliament often establishes statutory presumptions to be applied by courts and tribunals when they are determining individual cases, and occasionally directs that ‘particular weight’ is to be given to a particular consideration in a judicial weighing exercise. Nevertheless”—
this is emphasised—
“we are uneasy about a statutory provision which purports to tell courts and tribunals that ‘little weight’ should be given to a particular consideration in such a judicial balancing exercise. That appears to us to be a significant legislative trespass into the judicial function”.
The amendment offers the Government a way out of that “trespass”, and I hope that the Minister will feel able to take it.
Baroness Lister of Burtersett
On the principle that a stopped clock is right twice a day, I will speak again so that the annunciator is right. I supported this amendment in Committee and want to support it again. In fact, it is very timely because the UN special rapporteur on violence against women, its causes and consequences is currently on a mission in the UK and gives oral evidence to the Joint Committee on Human Rights tomorrow. In her preliminary aide memoire, she refers to four particular issues of interest. One is violence in the family and another is what she calls violence in the transnational sphere—that is, violence encountered by women facing new vulnerabilities as a result of increased transnational processes, such as immigrant women, asylum seekers and refugees. Women in that group are very vulnerable if they are in a situation of domestic violence. To their credit, the Government have taken domestic violence very seriously. I hope that we can have a slightly more positive response to the amendment than we did in Committee.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, first I must offer the noble Baroness, Lady Smith, an apology because I do not think I wrote to her on this issue. She has not missed the letter; I missed writing to her. I am sorry about that. I will make sure that I write to her after this debate because there are extensive arguments. I want to keep the argument fairly focused for this evening.
I will start with a generality. The noble Baroness, Lady Lister, was kind to say that the Government take this issue seriously. We do indeed. Only last Thursday, I was able to respond to a supplementary question from the noble Baroness, Lady Howarth of Breckland, about a report on the way that police forces deal with domestic violence. I said that the Home Secretary is committed to tackling this scourge. She has made it clear that she expects speedy action to implement the recommendations of that report.
Having said that, it does not necessarily mean that individuals who have been the victims of domestic violence should expect to be able to remain in the UK where their migration status would not otherwise permit them to do so. While I run the risk of repeating myself from last time and being quoted back yet again, as we have discussed previously there is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who came to the UK intending to make a permanent life here as the partner of someone who is already a permanent resident or who, in the case of the partner of a member of Her Majesty’s forces, is prevented from applying for permanent residence during the period of service. That just reiterates the position of that particular group of people.
However, the position is different for individuals who are in the UK because of a relationship with someone who does not have the right of permanent residence. Those individuals should not have any expectation of remaining in the UK outside that relationship, regardless of the reasons for that relationship breaking down. To grant leave to an individual who is in the UK as someone’s partner but who is not settled here on a basis other than the ongoing partnership would suggest that his or her right to be in the UK was independent of that partnership, which is not the position. It would not be helpful to encourage anyone to think otherwise or, by the grant of a specific period of leave, to give false hope that they might be able to stay. However, we take a pragmatic and practical view in these cases. If a migrant no longer meets the requirements of their leave because a relationship with a spouse or partner has broken down, discretion may be used so that, rather than curtailing leave with immediate effect, the Secretary of State may curtail that leave—if I may use the word “normally”—normally to a period of 60 days. This would allow the migrant time to make arrangements to depart the UK voluntarily without being here illegally, or to submit an application to remain in the UK on another basis. That is a relevant consideration, which I hope noble Lords will understand.
The Government consider that it is fair, reasonable and proportionate to distinguish between those whose partner is here permanently and those whose partner is here temporarily and may never become a permanent resident. I acknowledge that this is a difficult area but I think that noble Lords will understand the difficulties of extending rights in this area. I consider the position that I have outlined is the right one. As I have said, I certainly will write to the noble Baroness, with a copy to noble Lords, and will place a copy in the Library. I appreciate that this is an important issue to get right. None of what I have said dilutes our determination that we should pursue the issue of domestic violence, which ruins lives and is never acceptable. I hope that the noble Baroness understands our position and will withdraw her amendment.
Immigration Bill
Baroness Lister of Burtersett Excerpts(10 years, 8 months ago)
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Lord Pannick (CB)
My Lords, perhaps I may add my support to the points that have been made by the noble Baroness, Lady Hamwee. I shall speak to Amendment 31A, which is in my name and that of the noble Baroness, Lady Lister of Burtersett.
Amendment 31A arises out of the concerns that have been expressed at paragraphs 48 to 53 by the Joint Committee on Human Rights in its eighth report of this Session. The concern is that, in cases where a person is resisting deportation on human rights grounds, Clause 12 will allow the Home Secretary to certify that the person concerned may be removed from the United Kingdom because there is not a real risk of serious irreversible harm and the individual would then be able to pursue the appeal against deportation only from abroad. The Government say that judicial review will be available to such a person to challenge the removal decision while the appeal is pending.
The JCHR has expressed its concern about whether judicial review will provide a practical and effective means of challenging the certification by the Secretary of State that the appeal can be heard from abroad. The JCHR has drawn attention to the Government’s proposed changes to judicial review to restrict its availability and has emphasised the reductions in legal aid. The Joint Committee returned to this subject in its 12th report, published on 26 February.
I share the concerns that have been expressed by the JCHR, and I would add that it is more than a little ironic that the Government’s policy has hitherto been to reduce the number of judicial reviews in the immigration context on the basis that appeals are much quicker and cheaper, and yet now the Government are saying that the individual’s protection will lie in a judicial review. In the light of the reductions in legal aid and the changes that the Government are proposing to judicial review, there are real concerns about whether or not an effective practical remedy will remain available to the individual.
I want to add one specific point to those that have been made by the JCHR. In cases of this kind, a claimant for judicial review will vitally depend on information and representations from interveners; that is, expert bodies that regularly assist the court—sometimes in writing, sometimes through oral submissions—for example, by explaining to the court the practical conditions in the foreign state to which the person concerned is going to be deported.
Your Lordships will know that Clause 51 of the Criminal Justice and Courts Bill, which is currently before the other place, will oblige the court, other than in exceptional circumstances, to order an intervener to pay the costs incurred by the other parties as a result of the intervention—surprisingly, whether or not the intervention assists the court and, indeed, whether or not the party seeking costs from the intervener has succeeded in the judicial review. Does the Minister share my concern that, unless amended, Clause 51 of that Bill will inevitably deter interventions, which are vital in this type of case, and make it much more difficult for a person covered by Clause 12 of this Bill to bring an effective claim for judicial review? What assurances can the Minister give the Committee in response to my concerns and those set out more fully in the JCHR’s reports?
Baroness Lister of Burtersett (Lab)
My Lords, I support Amendment 31A. I am very grateful to the noble Lord, Lord Pannick, for speaking to it on behalf of the JCHR. As he has shown, he is much better placed to do so than I would have been as a non-lawyer. There is not much more to say about it. I will just underline what the JCHR said, which was:
“In the absence of legal aid, we do not consider that an out of country appeal against deportation on the grounds that it is in breach of the right to respect for private and family life is a practical and effective remedy for the purposes of Article 8 ECHR and Article 13 in conjunction with Article 8”.
Support also comes from the briefing we have received from ILPA, which underlines that for those who are unable to pay for legal representation and are therefore left to pursue their appeals by themselves, seeking to do so from outside the UK would be especially and in many cases prohibitively difficult. The absence of a legal representative at the appeal hearing and to assist in the collection, preparation and presentation of evidence is likely to spell the end of what little prospect there may have been in the small minority of cases where removal pending appeal had not itself spelt, in Lord Justice Sedley’s words,
“the end of the appeal”.
My preference would be for our amendment to prevail but, as a fallback, I would certainly support the amendment moved by the noble Baroness, Lady Hamwee, in respect of children. I will be speaking about children’s best interests in a moment, but a very good case has been made for this amendment by the Refugee Children’s Consortium and others. I will quote a case study that the consortium has provided, which states:
“The Home Office detained and planned to deport Christine, a single mother who had served a criminal sentence. Her two children were left in the care of their elderly and seriously ill grandfather. Her 15 year old daughter ‘Beth’ left school and missed her GCSEs while caring for her brother and grandfather. She struggled to look after her seven year old brother, who has very limited motor control and severe behavioural problems. A children’s services assessment found that the younger child was at risk of emotional and physical harm; he was later hit by a car while playing alone in the street. The children’s welfare was not taken into account by the Home Office, but after the mother’s release on bail she was reunited with her children and successfully appealed her deportation through the courts”.
The point made is:
“If Clause 12 becomes law, parents in Christine’s situation may be deported before they can appeal and her children would be separated from their mother”.
That is a horrendous example. If she had been deported, what would have happened to that family?
“(za) first, to the best interests of any child affected by a decision as specified in section 117A(1),”
Baroness Lister of Burtersett
My Lords, I will also speak to Amendments 40, 42, 43 and 45, supported by the noble Lord, Lord Roberts of Llandudno, and the right reverend Prelate the Bishop of St Albans. These amendments are about the best interests of the child. Time and again, your Lordships’ House has promoted and defended the best interests of children, and I hope that it will do so again in the context of this Bill.
Amendment 33 is designed to ensure that the best interests of children are explicit in this part of the Bill so that they are properly prioritised and comprehensively considered by a court or tribunal; and so that it is clear to all decision-makers that the best interests of children affected by these decisions need to be taken into account as a primary consideration. Amendments 40, 42 and 43 remove the concept of a “qualifying child”, so as to make clear in the legislation that all children’s best interests must be given proper consideration and weight. In addition, Amendment 43 alters the test in exception 2, concerning deportation of foreign criminals, where there is a genuine and subsisting relationship with a qualifying partner or child so that the effect on family members would have to be “disproportionate” rather than “unduly harsh”. “Unduly harsh” is, I understand, an alien test in the context of considering what is best for a child, whereas “disproportionate” is known and well understood with reference to the balancing act involved in considering interference with family life in EHCR case law. I cannot help but wonder what would constitute a “duly harsh” effect on a blameless child.
These amendments have been suggested by the Refugee Children’s Consortium. I am grateful to it for its briefing. Amendment 33 has also been endorsed by the Joint Committee for Human Rights, of which I am a member, in its second legislative scrutiny report on the Bill. The JCHR’s concern was mainly with the question of “best interests”, and that will be the focus of my remarks, too.
As noble Lords will be aware, the injunction to establish the best interests of children and ensure that they are a primary consideration in all decisions affecting them derives from the UN Convention on the Rights of the Child, its general comments and judgments in both the European Court of Human Rights and the UK Supreme Court. Clause 14 fails to make this injunction explicit and does not reflect established case law on children’s best interests. In particular, it fails to highlight the importance that must first be accorded to understanding the best interests of the child, and their weight, before going on to consider any other countervailing public interest factors.
I emphasise that this is not an argument that children’s best interests are some kind of a trump card. I repeat: it is not arguing that they are a trump card that overrides these countervailing public interest factors, only that they must be a primary consideration in the assessment of each individual case. What this means was spelt out in the landmark Supreme Court judgments, ZH (Tanzania) and HH. In the ZH judgment, it was noted that in making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations.
In HH, Lord Justice Kerr—the noble and learned Lord, Lord Kerr—stated that best interests,
“must always be at the forefront of any decision-maker’s mind … This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether [the government’s action] justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests”.
Amendment 33 does no more than make that explicit. It is a principle that the Government accept, as they made clear both in the Public Bill Committee and in their correspondence with the JCHR about the relationship between this legislation and the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, to have,
“regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.
The committee welcomed that, but despite the Government’s reassurances, it considers that the Bill should be amended to,
“remove any scope for doubt about the effect of the Bill on the s. 55 children duty, by requiring the best interests of the child to be taken into account as a primary consideration”.
Baroness Lister of Burtersett
I am sorry to interrupt the noble and learned Lord but I thought I would do so now rather than wait until my response at the end of his remarks. I did address the argument concerning the seven-year period—that point had already been made. I asked specifically why, as the noble and learned Lord said, the case refers to children aged four when the period given is seven years. I gave a specific example of how I know personally that a child under seven can have very strong connections outside the family. The Minister has not addressed that point.
Lord Wallace of Tankerness
My Lords, as I think the noble Baroness alluded to when she moved the amendment, in the Public Bill Committee in the other place my honourable friend Mark Harper, who was then the Immigration Minister, indicated that the age of seven had previously been brought in as a concession —known as DP5/96, from which I assume that it was brought in in 1996—against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying Article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what Article 8 required and it led to uncertainty and inconsistency. Therefore, the period of seven years had applied before.
I do not disagree that there may be cases that need to be looked at individually but the important point that we are seeking to make here is that it is for Parliament to indicate what it believes the age of a qualifying child should be. We are saying that in our judgment it should be seven, for the reasons I have articulated. I also indicated that ultimately it will be for the courts to determine the proportionality of a decision. However, passing this primary legislation will give a strong steer and an indication to the courts of what Parliament believes to be in the public interest. That is a judgment that the Government have made. I think I am right in saying that it was in the 2012 rules, which have been considered and which we now invite Parliament to endorse and to put into primary legislation.
The noble Baroness asked whether I could confirm that guidance will be published and how the Section 55 duty will apply in relation to cases considered. I confirm that it is our intention to publish guidance setting out how the best interests of the child will be considered. As I have already said, Section 55 requires the Secretary of State to have regard to the best interests of the child as a primary consideration, and the Bill does not change that.
I will write separately to the noble Baroness, placing a copy in the Library, in response to her query about the response to the asylum report and the consideration of children’s best interests. The Home Office response to the UNHCR report on asylum is still being considered.
Amendment 43 would replace “unduly harsh” with “disproportionate” when considering the effect on the partner or qualifying child of the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more. However, this would not reflect sufficiently clearly the weight that should be attached to the public interest in the deportation of such a foreign criminal. Nor would it achieve the aim of the legislation, which is to set out clearly how the Secretary of State and the courts should approach the proportionality test, taking account of the public interest as properly determined by government and Parliament.
We believe that the children’s best interests must be a primary consideration. We fully accept that and Clause 14 is carefully designed to reflect that. However, it is simply not the case that a child’s best interests will outweigh every other possible countervailing factor, including illegal immigration and serious criminality. Nor is it the case that the UK is obliged to allow all migrants who are parents to remain in the UK where this is in one child’s best interests, ignoring the interests of other members of the public, including children.
In cases that do not fall within the scope of Clause 14, consideration will still be given to the individual facts of the case having regard to Article 8 and Section 55. Clause 14 does not seek to cover every possible situation in which an Article 8 or Section 55 issue may arise. That would be too complex and unwieldy.
In EA (Nigeria) the court said that, in considering the best interests of a young child, the correct starting point is to assume that it is in the best interests of a child to live with and be brought up by his or her parents unless there are very good reasons why that is not the case. Therefore, where the child is being removed with their parents and as a family to that family’s country of origin, that is not a breach of Article 8 and we believe that it is consistent with the children duty in Section 55.
I hope that the House will agree that technical legal arguments about whether the best interests of a child is “a” or “the” primary consideration, or the order in which various factors must be considered, can be a distraction. The important point is that we comply with the obligation to treat the best interests of the child as a primary consideration. We believe Clause 14 is entirely consistent with that. The noble Baroness’s amendment has afforded me and other parts of the House the opportunity to make that very clear. However, we believe that the amendments would draw lines in the wrong place. For those reasons, I invite the noble Baroness to withdraw her amendment.
Baroness Lister of Burtersett
My Lords, I am very grateful to all noble Lords who have spoken in support of the amendment, and to the Minister for setting out the context for this clause and his very full response to the amendments. Before turning to best interest, which is the primary purpose of the amendment, I want to go back to the issue of the “qualifying child”. I still have not heard a justification for the age of seven, other than that it happened to be in a previous concession. However, we do not know why that happened. When I was making the point about how children under the age of seven—let us say between the ages of four and seven, given the court case which referred to the age of four—noble Lords were nodding their heads all around me. Everyone recognises how a young child can develop really important attachments beyond the family. I have not heard any convincing argument against that from the Minister. I hope he will take that away and reflect further on the age of seven. Should we not be thinking about a younger age—say, four—given that court case? The point has been made that the key issue is the age at which children go to school. In this country, children go to school before the age of seven.
The main point of the amendments is the “best interests” of the child. I am perplexed. I thought that there was no disagreement in principle between us. I am very grateful to the Minister for putting things clearly on the record, as requested. He has placed great emphasis on the need for clarity in the Bill. Yet the noble Lord, Lord Pannick, who is not someone to be confused by legislation, is confused by the Bill. The Joint Committee on Human Rights, which is charged by Parliament to advise it on the human rights implications of legislation, is very clear that this needs clarifying in the Bill. I do not think that it would lead into technical process arguments rather than substance arguments. Therefore, while I am pleased to have it confirmed that there is no difference in principle between us, in the interests of clarity and reassurance to a great number of organisations concerned with the interests of children, I do not think that I have heard one convincing argument as to why this amendment or a similar one cannot be accepted.
Despite what the Minister has said, I hope that he will take the issue away and think about it further because I certainly will. I beg leave to withdraw the amendment.
Baroness Lister of Burtersett
My Lords, I will speak to Amendments 38A, 38B and 39A. The noble Lord, Lord Pannick, has made a very powerful case against Clause 14, in which he referred to the report of the Joint Committee on Human Rights, particularly our concerns about the “little weight” point.
The Joint Committee acknowledged that Clause 14,
“could be considered to be Parliament's fulfilment of the important obligation imposed on it by the principle of subsidiarity, to take primary responsibility for the protection of Convention rights in national law by providing a detailed legal framework to give effect to them”.
But, as the noble Lord, Lord Pannick, said, we expressed our unease about the “little weight” provision, which we considered to be,
“a significant, and possibly unprecedented, trespass by the legislature into the judicial function”.
Our concerns remain despite the Government’s response to our report, which did not,
“specifically address our concern about these particular provisions going too far by seeking to prescribe the weight to be given to certain considerations, but merely repeats the Government’s general justification”—
this seems to be a pattern: the point is made and the Government justify it with exactly the same point without any real engagement with the arguments that are being made—
“for the provisions in clause 14 of the Bill: that it is ‘right and helpful that Parliament should set out what the public interest requires in the clear and practical terms reflected in clause 14, which reflect the case-law’”.
I think that the noble Lord, Lord Pannick, has fairly well demolished that argument.
The report continues:
“We remain concerned by these provisions in the Bill, which do not seek to guide the courts about the public interest considerations to be taken into account in deciding whether an interference with private or family life is justified, but rather seek to influence the amount of weight given to the right itself in particular types of case”.
The amendments to which I am speaking would give effect to the Joint Committee’s original recommendation that,
“the Bill be amended in a way which retains this as a relevant consideration to be weighed in the balance, but does not seek to prescribe the weight to be given to the right in that balancing exercise”.
Baroness Hamwee
My Lords, Amendment 47 deals with financial circumstances when they fall to be considered in respect of an applicant seeking to enter or remain in the UK. I have quite deliberately framed the amendment as a new clause rather than seeking to amend Clause 14, where I am sure that I would be told that there was a very delicate balance that I should not be disturbing.
The Minister and I have debated before, and I suspect that we will again, the issue of the family migration laws that were introduced in July 2012, under which new financial thresholds are required to be met for an applicant to join a British citizen to whom he or she is married, or is a partner, in this country. The Minister will recall our discussions both about the financial threshold and about the impact on children who, as a result of the rules, find themselves separated from one parent. The impact is on families of British citizens and taxpayers.
I am well aware of the case of MM. I am not sure whether it is still being heard in the Court of Appeal. It started at the beginning of this week and we await the Court of Appeal’s judgment. I am aware that the Home Office has suspended decisions where the issue is a financial one, pending the outcome of the case. However, I could not let the Bill go by without a reference to what, week after week, I see as being very distressing circumstances. I say “week after week” because those who are affected by the rules, and noble Lords will understand this, cast around for those who may be interested and who may be able to take up their case. I am not really in a position to take up cases but I am certainly interested, and I therefore have a steady stream of e-mails and letters telling me of sets of circumstances that I do not think anyone could possibly have envisaged when the rules were brought into effect.
My amendment would seek to ensure that, where financial circumstances were to be considered, account would be taken, first, of the national minimum wage. The financial threshold where there are no children, in the case of the family migration rules, is £18,600, while the national minimum wage, worked for a 40-hour week, is in the order of £13,200. Secondly, account would be taken of,
“the benefit to taxpayers and to society of the applicant acting as a carer”.
I have come across a number of situations where the British citizen is caring for—usually—a child, and if that British citizen could be joined by his or her spouse then caring responsibilities would be shared, which would be to everyone’s benefit in a social, humane sense, but would also be a benefit to the taxpayer because it would lift the burden from them, too. Thirdly, I have referred to,
“the applicant’s prospects of employment (including likely earnings)”,
and those of the spouse or partner. I am aware of quite ironic situations where high-earning people have been defeated by these rules, even though they have great prospects not only of earning themselves but of bringing economic goods to the country, because there is no contract in place or history of earnings here to which they can point. I am aware of a number of situations where people have taken the decision to go and live in another country and apply their earning power there. Lastly, and very importantly, I refer to,
“the interests of any child … who as a result of the refusal of the application may be separated from a parent”.
I have already referred today to the impact on children separated from parents, and this is something that concerns me very much.
In the first instance decision, Mr Justice Blake referred essentially to these factors in the concerns that he expressed about the rules that are in place. One of his suggestions was reducing the minimum income requirement of the sponsor alone to £13,500 or thereabouts —very close to the figure that I have referred to.
I could speak on this for a long time, but I am of course aware of the debate that is to come and that noble Lords are gathering for it. I also know that the Minister is not in a position to roll over tonight, given the case that is in train. In all conscience, though, I had to raise this; it expresses my position and keeps the faith. I beg to move.
Baroness Lister of Burtersett
My Lords, I support this amendment. I remember that when we debated the original regulations in your Lordships’ House, I said I found it quite distasteful that we were introducing a means test for family life—a means test that, unlike other means tests, excludes the most disadvantaged rather than includes them.
Last summer I chaired a packed meeting for the Divided Families Campaign. We heard some heartbreaking examples of families who had been broken up as a result of these new regulations. Many noble Lords will be aware of the report produced by the All-Party Parliamentary Group on Migration on its inquiry into the new family migration rules. I will not go into any detail now because of the other debate that is about to happen, but there are plenty of examples there of the harmful effects of these regulations.
I cannot help but reflect that yesterday in your Lordships’ House the noble Lord, Lord Freud, created a false divide, suggesting that that side of the House supported marriage while this side could not care less about it. My concern is less about marriage as such; I am concerned about family relationships. It would seem that, when it comes to immigration, some marriages are more important than others and other marriages simply do not count. I am very glad that the noble Baroness, Lady Hamwee, has used this opportunity to remind your Lordships of the heartache that is being caused. Noble Lords may not receive a steady stream—I receive perhaps not quite such a steady stream—but we certainly receive a steady trickle of e-mails and letters about this. It is important that we keep this in the public domain because I do not think we can carry on like this for much longer.
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Lord Harries of Pentregarth
My Lords, I need not speak to this amendment for very long. We very much welcomed the Government’s commitment to have a review of the Act after the 2015 general election and that they will set up a person to monitor the election itself. That is all very much to be welcomed—not least of course because, even with the amendments that the Government have accepted, there is still a great deal of concern about this Bill.
We all know that there is a tendency for reviews to be spun out and spun out. That is why some of your Lordships were very keen to have a sunset clause. I believe that Amendment 21 will ensure that Parliament has a proper opportunity to see that review and respond to it well before the election following the 2015 election. We believe that 18 months is about the right time for a proper review to take place and for all the consultations that are necessary. I beg to move.
Baroness Lister of Burtersett (Lab)
I want very briefly to support the amendment but also to remind your Lordships’ House that the Joint Committee on Human Rights expressed concerns about the implications of the Bill for freedom of association and freedom of expression. I would be very grateful if the Minister, in responding, could assure your Lordships’ House that the effects of the Bill on freedom of expression and association will be part of this review, the importance of which was underlined when discussed in Committee—although I do not think that this particular point was raised.
Lord Tyler
My Lords, I very much welcome the noble and right reverend Lord’s amendment. I believe that it is preferable to a sunset clause because it will start the process of analysis of what is happening under the Bill before the general election happens, rather than having to wait till a later stage. I hope that it gets an equally warm welcome from my noble and learned friend on the Front Bench.
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Baroness Lister of Burtersett (Lab)
Before the noble and learned Lord sits down, I have a question about the e-mail from the Charity Commission, which I have here. My reading of it is that the question about resource implications is a subsidiary argument, and that the key argument is:
“We do not believe that, in the best interests of public trust and confidence in charities, an exemption for charities is the most appropriate method for the regulation of charities during an election period”.
Surely that is the argument that the Charity Commission is putting forward against this amendment. The question about resources is just supporting that.
Lord Mackay of Clashfern
The reason that that is a difficulty is because it cannot be relied upon to enforce the law. There is no question of trust in charities being damaged by propaganda and that kind of thing. If it were shown that charities were not obeying charitable law, that would damage trust and confidence. If the commission does not have enough resources to pursue that properly—as paragraph 4, I think, says—that is a problem. I can see that if that is justified, it is a problem, but it is a very serious problem if organisations set up to ensure that the law is observed in a particular area say that they do not have sufficient resources to do it properly.
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Baroness Lister of Burtersett
My Lords, I wish briefly to draw attention to what the Joint Committee on Human Rights said about this. I am a member of that committee and I apologise because I have a meeting this afternoon and will not be here for much of the rest of our debates. The committee acknowledged that the Government were right to review the maximum spending limits; I imagine that they need to be reviewed every so often, not least because of inflation, which the amendment addresses.
The committee’s report makes the point about the lower limits now being,
“applied to a wider list of controlled activities (such as media events, rallies, canvassing)”,
and that,
“the Government admits that it is difficult to assess how much is currently spent on these additional activities by third parties and therefore it is difficult to assess the impact of the measure. The Government’s inability to provide this assessment is of concern, and adds to the overall uncertainty and lack of understanding regarding the Bill”.
Is the Minister able to provide some assessment of what this will mean and allay the concerns that have been raised? In the absence of that and of decent evidence, which is generally lacking around the Bill, I strongly support the commission’s amendment.
Baroness Hayter of Kentish Town
My Lords, it will probably come as no surprise that the Labour Party supports reducing the cost of politics, not simply because that is right nor just because of the warnings sounded by the noble Baroness, Lady Williams, who is not in her place, on Monday and this morning, but perhaps because Labour is outspent by the Conservatives. The current situation is bad for democracy, not simply for ourselves, and the major reason is because money and politics rarely mix. We want all groups, candidates and parties to be able to put their views to the electorate without needing to raise large sums or without having to be rich enough to fund a campaign themselves.
Although we are slightly unsure about the wording of the Bill, we think we have much in common with the intention behind the Government’s changes, in that we support transparency and lowering costs. However, we are concerned, for the reasons that we have just heard, about what they have sought to do and the figures that they have chosen. Neither the noble Lord, Lord Horam, nor the rest of us know where the figures come from. The Electoral Commission quite rightly says that it is for the Government to propose and for Parliament to decide on the appropriate limits, in order to balance that freedom of expression against controls of undue influence. The commission listed some of the factors we ought to think about, such as inflation and the wider range of activities. However, we find it difficult to see how the Government have thought about those matters in the way that my noble friend Lady Lister suggested because we have seen nothing of the assumptions that they have made about the costs associated with policy research, press, meetings, debates and staff, which will now be covered by the Bill—and over a 12-month period.
In the earlier debate the noble Lord, Lord Tyler, compared what a third party might be able to spend against what a candidate might spend; of course we are talking about a 12-month period, not when the candidates are affected in the short campaign. So, as others have done, we ask: what are the factors that led to these figures? Were they grabbed out of the ether, rather like the 500 seats in the Commons that the Government, as the House will remember, were set on last time? Did these figures just come out of a roulette wheel without rhyme or reason, or is there something that we could look at to test the Government’s assumptions that these are the rights figures? Without that, it is very hard to see the logic behind them.
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Lord Harries of Pentregarth (CB)
My Lords, I am glad that the noble Lord, Lord Rooker, has raised the specific case of Northern Ireland, which he did in such a deeply felt and powerful way.
The Commission on Civil Society and Democratic Engagement, which I have the privilege to chair, carried out two consultations in Northern Ireland—one before our first report and one before our second. It would be fair to say that, as a result, we became not just concerned but seriously disturbed by the possible harm that the Bill as it now stands could do in Northern Ireland. Consequently, we put forward a number of recommendations, reflected in later amendments which I am not going to mention now; I will speak to them when we reach them. However, I hope that the Government will pay particular attention to what the noble Lord, Lord Rooker, said, especially about the manner of government in Northern Ireland, which is so different from that in Wales, Scotland and England. It may be that the Government will bring forward quite specific amendments—whether or not they accept the view of the noble Lord, Lord Rooker—in addition to those which the commission will be putting forward.
Baroness Lister of Burtersett (Lab)
My Lords, I do not have the same experience as my noble friends who have already spoken so powerfully about the dangers of this Bill for Northern Ireland, but I was privileged to be a member of the Opsahl commission on the future of Northern Ireland about 20 years ago. As part of that commission we invited anyone to give evidence about anything that concerned them. We were particularly impressed by the evidence that we received from local civil society groups, especially from the women in those organisations, working within and across divided communities to help bring peace and social justice to Northern Ireland.
As it happens, 10 days ago I was in Belfast with the Associate Parliamentary Group on Women, Peace and Security, which is undertaking an inquiry into the application to Northern Ireland of UNSCR 1325 on women’s roles in post-conflict situations. To my amazement, I discovered that our Government did not accept that Northern Ireland had been in a conflict situation, although there are groups currently campaigning on the application of UNSCR 1325 to Northern Ireland. When we heard from civil society groups, one of the overwhelming messages that we received was that women in deprived communities feel that they are being silenced, partly by the men in their communities and partly because their role in achieving peace and reconciliation in Northern Ireland is simply not being recognised. My fear is that this Bill will further silence these women who are active in local community groups.
My noble friend Lord Rooker talked about equality legislation in Northern Ireland. Again, the overwhelming message we received was that Section 75 of the Northern Ireland Act 1998 is not producing gender equality in Northern Ireland; in the name of gender neutrality, women are being disadvantaged. Again, these are issues around which campaigning has taken place. As well as the implications for Northern Ireland—I hope that the Minister will take heed of my noble friend’s warnings in that regard—this issue also illustrates an important point made by the Commission on Civil Society and Democratic Engagement, which I congratulate on producing a first-class, useful report in no time at all. One of the issues to which it draws attention is the failure of the Government to provide a detailed equalities impact assessment. This is very relevant to the Northern Ireland situation where, as I say, women’s voices in particular could be silenced. The report says that the commission is not aware that any progress being made in this regard during the pause—that is, with regard to an equalities impact assessment. Therefore, I would be very grateful if, as well as referring specifically to the point about Northern Ireland, the Minister will advise your Lordships’ House whether any progress has been made on an equalities impact assessment in relation to this piece of legislation.
Baroness Lister of Burtersett
Can the noble and learned Lord give an answer to my question about whether any further work has been done on the equalities impact assessment? This is not relevant only to Northern Ireland but, for the reasons I gave, is particularly so there.
Lord Wallace of Tankerness
My Lords, I apologise for overlooking my scribbled note. As part of the impact assessment at the time the Bill was published, we said that 30 third parties were recognised by the Electoral Commission for the 2010 general election and that there were no robust equalities data covering these groups. However, we did not believe that these proposals would have an adverse equalities impact because of the wide range of groups that were registered. There is nothing to suggest that there was a preponderance of gender equality organisations. We therefore do not believe there is particular impact in that regard.
In the 2010 election in Northern Ireland, 10 third parties spent a total of £26,773 while £27,000 could potentially have been spent by each third party. The total for 10 third parties was, therefore, less than what one could have spent. Only two incurred expenditure above the current £5,000 registration threshold.
Baroness Lister of Burtersett
My Lords, I declare my interests at this point. They are quite wide-ranging in relation to charities and non-charitable organisations, and they are listed in the legislative scrutiny report of the Joint Committee on Human Rights.
I want to declare my support for the amendments tabled on behalf of the Commission on Civil Society and Democratic Engagement. While I take the point of the noble Lord, Lord Horam, that it is not unusual for this House to take a number of amendments together, I point out that the Electoral Commission emphasised that we have to consider the cumulative impact of a number of different parts of this legislation. This was also a point emphasised by the Joint Committee on Human Rights, so it is not inappropriate for us to consider the way these amendments hang together. I think they do hang together.
I simply want to highlight very briefly a few of the points covered by them. The first is the question of access to information for disabled people, which has already been talked about very powerfully. This is a question of equity. It costs more to provide that information and it is only equitable that that is taken into account.
The second point, which we have not talked about as much, is the question of public meetings. The NCVO in its latest briefing picked this up, referring to the report of the Joint Committee on Human Rights and our concern about the possible impact of this part of the legislation on the human right to freedom of association. That is very important. The NCVO refers to a number of organisations having flagged this up, particularly with regard to disability, welfare and social security reform issues. The concern is about the high cost associated with organising a rally of some form and the subsequent impact this would have on campaigning activity through the rest of a regulated period. I hope the Government might consider looking again at public meetings being covered by the legislation.
The final point is on the question of the definition of “supporters”. I was struck that the commission’s report pointed out that this matter was simply not considered by the House of Commons during its debates. I went to the launch of the commission’s second report, where one of its members spoke very convincingly about the importance of taking account of how membership of organisations has changed and said that the legislation has not caught up with this. The commission’s report states:
“We heard evidence about the need for a definition of supporters which reflects the contemporary way in which members of the public lend their support to organisations and campaigns including by email and social media—not just financial supporters”.
I am not sure which of the competing amendments is right, but it seems to me essential that one of these amendments should be accepted, and that we have a more up-to-date understanding of what it means to support voluntary organisations.
Lord Best (CB)
My Lords, I shall speak to Amendment 163A, another in this rather large group. I declare my interest as a member of the advisory board of the National Council of Voluntary Organisations, the NCVO, which is a key organisation in seeking amendments to the Bill and supplementing the brilliant work of the civil society commission chaired by the noble and right reverend Lord, Lord Harries of Pentregarth. I am grateful to him for his support for this amendment, and to the NCVO for its briefing on this amendment.
This amendment joins so many others in seeking to preserve the freedoms of not-for-profit organisations seeking to influence government and decision-makers. In the case of this amendment the issue is the new list of activities, the costs of which count as qualifying expenses and lead to regulation. The list now includes public rallies or other public meetings where expenses include costs in connection with the attendance of persons at the event, the hire of premises and provision of goods, services and facilities. So this is about all costs associated with freedom of association at rallies and other public meetings. A potential problem here is acknowledged by the Government’s human rights memorandum, which noted that,
“more things (such as for example, costs associated with the organisation of rallies and events) will count towards spending limits and require control. This engages Article 10 and 11”.
The Joint Committee on Human Rights has expressed concern about the possible impact of the broadened list of activities on the freedom of association. The noble Baroness, Lady Lister, has just referred to this. A number of organisations, notably those interested in disability and welfare reform issues, have flagged the concern that the high costs associated with organising a rally of some form would have a major impact on campaigning activity throughout the rest of a regulated period.
Perhaps I could share three examples of organisations and their activities that would be covered by the new rules and lead to disproportionately onerous bureaucracy and burdens, which could effectively prevent those organisations campaigning in ways that they have done in the past.
The first is the case of the Countryside Alliance’s opposition to the hunting ban in 2001 and 2005—an example that is known to a number of your Lordships. In the run-up to the 2001 and 2005 general elections, the alliance mobilised its supporters and the general public against the hunting ban—activities which in total required a pretty high level of expenditure, including demonstrations and rallies against the hunting ban, press conferences to promote the event, transport costs for those attending the events, and producing and distributing leaflets to promote the events. The Countryside Alliance is not linked to any one political party. However, because the issue of hunting can be seen as highly partisan, with the hunting ban more associated with the Labour Party, all the costs incurred in these events would have counted towards the alliance’s expenditure. Had the Political Parties, Elections and Referendums Act 2000 been amended as the Bill proposes at the time the hunting Bill made its way through Parliament, the ability of organisations such as the alliance to oppose the proposed ban and organise marches and rallies would have been severely curtailed.
Secondly, in the run up to the Copenhagen climate change summit in 2009 and the UK general election in 2010, the organisations in the Stop Climate Chaos coalition worked on a range of events, including outdoor rallies; the Wave, a march through London attended by 50,000 supporters; and schools’ conferences held with schools from across England to talk about climate change, with MPs invited to a panel debate. Under the new rules proposed by the Bill, even if lower spending limits are not pursued, it is likely that the various activities carried out by the coalition would have exceeded the maximum amount allowed, forcing the coalition to stop its campaigning.
Thirdly and finally, the Women’s Institute’s Great Food Debate involved a programme of work on food security and was launched at an event in York in December 2012 with a report on food security. The event was free, open to the public and included a panel at which the Environment Secretary, Owen Paterson MP, gave a keynote speech. Members of the WI and members of the public attended the launch and debate, with another in Cardiff the following month. The Great Food Debate is designed to explore the concept of pressure on the food system and provide an opportunity to engage with the public. The National Federation of Women’s Institutes encourages WIs all over the country to replicate its national work by hosting their own local and regional Great Food Debates. All this generated significant media coverage, including local and regional coverage. The Great Food Debate is certainly not supportive of any particular party but the media reporting of the events placed the debates and work programme in a political context, as exemplified by headlines such as the following in the Daily Mail:
“Put cooking back on the national curriculum to tackle obesity timebomb and stop pupils wasting food, urges WI”.
The Daily Telegraph read:
“TV cooks should give us recipes for leftovers to cut waste, says Minister”,
and:
“Teach all children to cook in schools, says Women’s Institute”.
In addition, the Environment Secretary used the platform as an opportunity to call for further consideration by the public of GM and agritechnology. If the Bill is passed and these events were held in the 12 months before one of the elections covered by it, the related costs would take the National Federation of Women’s Institutes over the registration threshold, with all the consequences that that would imply. All local WIs and federations would have to register as third-party campaigners with the Electoral Commission because the NFWI would have spent more than the registration threshold in creating the materials to help members hold their own debates. Federations and WIs in this scenario would then have to take on all the regulatory burdens associated with that.
It is good to hear that the Government will be bringing forward changes that will increase substantially the cash thresholds for registration. Amendment 163A helps that process by taking out one element that could disproportionately affect the total spending by voluntary bodies in this grey area of non-partisan campaigning. It diminishes the unintended chilling effect of the Bill, which otherwise seems likely directly to deter voluntary bodies from organising the free association of people at rallies and public events, and indirectly to reduce engagement of the sector in important campaigning activity.
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Baroness Lister of Burtersett (Lab)
My Lords, like the noble Baroness, Lady Williams, I speak as a non-lawyer. Indeed, my background was originally in the charitable sector; I was the director of the Child Poverty Action Group and worked there for eight years, and now I am its honorary president. I also have links with non-charitable NGOs.
The noble Baroness talked about the political and legal aspects of this. While I am sure that the noble Lord, Lord Phillips, has tabled this amendment from the very best of motives, there is a danger of it being seen as the politics of divide and rule. The two things that strike me are, first, that charities themselves are not asking to be exempted. Surely that must count for something. The noble Lord said that charities are worried. Yes, they are worried, but they do not want to be exempt.
Lord Phillips of Sudbury
My Lords, I am most grateful to the noble Baroness and I am sorry to interrupt so often, but I am being challenged. The noble Baroness, Lady Mallalieu, said that the charities she has talked to do not want to be exempted. All I can say is that the overwhelming majority of those I have been speaking to, and indeed know of because perforce I know a vast number of charities, want exemption. Perhaps I can take as examples the Charities Aid Foundation which only has charities as members or the Directory of Social Change which only has charities as members as compared with, say, the NCVO, which has both. The organisations I have mentioned are keen for charities to be exempt for all the reasons I have tried to explain. The impression must not be left tonight that charities somehow want to be kept in this Bill. My experience is quite the reverse.
Baroness Lister of Burtersett
I do not have that evidence and no charity has written to me asking to be exempt, but there may be other noble Lords who can act as the referee in this dispute.
A point which has not been made yet is that the Electoral Commission has said explicitly that it does not support this amendment, and surely that must count for something. The noble Lord, Lord Hodgson, talked about what have been very seductive arguments, but I say to the Minister that I hope he will not listen to the siren voices of his noble friends.
Baroness Pitkeathley (Lab)
My Lords, I am a fan of the noble Lord, Lord Phillips. I have every reason to be grateful to him from when I was running a charity myself, but I cannot support his amendment. I, too, have had words with a great many charities and have been surprised by how many of them are opposed to this amendment and have not taken any comfort from his faith in the Charity Commission doing the excellent job that he appears to think it would do in this regard.
Some of the charities I have spoken to have been opposed to the idea of exemption for personal reasons. For example, the Save Lewisham Hospital Campaign would not have wanted to go through the process of registering as a charity to gain exemption. Those involved were too busy with their campaign. I have spoken to other charities which point out that coalitions are often formed across sectors so that they make up coalitions not only of charities but of social enterprises and, indeed, of commercial organisations. I certainly have had experience of that in my campaigning background. What we have to remember is that the NGO sector, whatever it is, is increasingly diverse. We are constantly coming across different forms of NGO-type organisations. There is a great potential for confusion among the public and supporters. We should focus on the activity being undertaken, not on the type of organisation undertaking it. I understand that some legal opinions have suggested that going for exemption may be a legally unviable option and much too open to challenge. There is also a widely held view that it is unfair to make non-charitable organisations subject to tighter regulation, thus making it more difficult for them to highlight the problems which this legislation is increasingly going to bring about.
We come back to the point that this legislation is being introduced without proper evidence and without proper consultation. As I said at Second Reading, it is very much a sledgehammer Bill to crack what was, at best, a small nut of misbehaviour by some non-charitable lobbying organisations. The noble Lord, Lord Phillips, himself said that it is complex, there is a great deal of bureaucracy and there will be a diversion of philanthropic effort. It puts a disproportionate burden on organisations and is wholly unnecessary. This does not seem to be an argument for exempting charities but for amending the Bill in the way your Lordships are trying to do.