European Union (Withdrawal) Bill

Baroness Lister of Burtersett Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[The Earl of Dundee (Con)]

My Lords, in connection with EU withdrawal, and as already intimated, there are perhaps two key aspects concerning our protection of children. First, that the current level of cross-border co-operation should not diminish. Secondly—which this group of amendments highlights—that UK domestic law and its deployment should continue to be guided by the United Nations Convention on the Rights of the Child.

With regard to the first, can my noble friend the Minister reassure us that to safeguard children the right steps are being taken so that the UK will remain part of relevant cross-border interventions, including Europol and the European arrest warrant agreements?

The second focus is on United Kingdom law protecting children. Here, two inconsistencies already obtain. For, while subject to EU legislation, our own UK legal provision still falls short of that covered by EU law on children. In relation to UNCRC there is an even wider gap. That is since, although guided by it, none of the United Nations Convention on the Rights of the Child has been incorporated into UK domestic law at all—hence within Amendment 70 the exhortation that it should now come to be.

However, in spite and irrespective of such apparent anomalies and omissions, after EU withdrawal clearly our principal aim must be to avoid any slippage of existing UNCRC standards. What plans does my noble friend now have to ensure that we do avoid this?

Yet at the same time, does he concur that we ought to go much further; thus not just guarding against the erosion of standards; but in properly maintaining them also seeking to build upon and improve them?

For, rather obviously, sustained cross-border co-operation as well as improved national legislation protecting children are both in the interest of all states. To mutual benefit, therefore, this consideration in turn reflects the positive opportunity for attaining much better results for protecting children’s rights.

All the more so is that the case with us since, although leaving the European Union, we will remain within Europe’s consensus on human rights and the rule of law represented by its far larger affiliation of the 47 states of the Council of Europe, in which parliament, along with those here tonight, including the noble Baroness, Lady Massey, the noble Lords, Lord Russell and Lord Foulkes, and my noble friend Lord Balfe, I have the honour to serve.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak to Amendment 70, in my name, supported by the noble Lords, Lord Storey and Lord Russell, and the noble Earl, Lord Dundee, to whom I am grateful. However, my remarks are also relevant to other children’s rights amendments in this group, some of which I have signed. I am grateful, too, to the Children’s Society for its assistance, and to all the children’s organisations that have worked so hard to ensure that children’s interests are not forgotten as we debate the Bill.

I have already made clear my strong opposition to the removal of the Charter of Fundamental Rights from retained EU law, and colleagues have made clear the damaging impact this is likely to have on children. Amendment 70, which is a probing amendment, goes further than other amendments in this group in that it provides for the full incorporation of those parts of the UN Convention on the Rights of the Child ratified by the UK. The convention covers all aspects of a child’s life and sets out the civil, political, economic, social and cultural rights to which all children are entitled. Key principles include the best interests of the child being a primary consideration in all actions concerning children, and children being able to express their voices in all matters affecting them.

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[Lord Brown of Eaton-under-Heywood]

I would be extremely obliged to the noble Baroness if she would put these cases clearly and crisply on a piece of paper and share them not only with me but with the Official Solicitor, who I think would be extremely interested in the proposition that children’s rights are being ignored in the youth justice system. But if they are ignored now, when the charter is available, what is to be lost?

[Baroness Lister of Burtersett]

The noble and learned Lord may remember that in my speech, which was about the UN convention rather than the charter, I cited a case, which I am sure he is familiar with—R(SG) v Secretary of State for Work and Pensions—where three of the judges, including the noble and learned Baroness, Lady Hale, found that the Department for Work and Pensions was in breach of the UNCRC, but because it was not incorporated they could not find against the Government and said that it was for Parliament. Here is a clear example of where three out of five judges found that children’s rights in the charter—the best interests of the child—were not being treated as a primary concern, yet they could not find for those families.

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Moved by

[Baroness Lister of Burtersett]

40: After Clause 5, insert the following new Clause—
“Future provisions relating to family friendly employment rights, gender equality and work-life balance for parents and carers
(1) A Minister of the Crown must, as soon as reasonably practicable, report to both Houses of Parliament whenever new or amended EU law in the area of family friendly employment rights, gender equality and work-life balance for parents and carers would have amended provisions or definitions in domestic law had the United Kingdom remained a member of the EU or the European Economic Area (the “EEA”) beyond exit day.(2) Having reported to both Houses of Parliament, the Minister must consider whether to seek to incorporate those amended provisions or definitions into domestic law, in order to ensure that there is no material reduction of gender equality and employment rights as a result of the United Kingdom exiting the EU or EEA and that those working in the United Kingdom have at least the same gender equality and employment rights and protections as they would have had if the United Kingdom had remained in the EU or EEA.(3) New or amended EU law for the purposes of this section includes but is not limited to—(a) any future EU directives relating to family friendly employment rights, including but not limited to rights for pregnant workers and employees, and those returning from maternity, paternity and parental leave;(b) any future EU directives relating to gender equality;(c) the proposed directive of the European Parliament and of the Council on work life balance for parents and carers.(4) Reports presented under subsection (1) must include—(a) an assessment of how such amendments to domestic law would have impacted gender equality and work life balance in the United Kingdom had the United Kingdom remained a member of the EU or EEA beyond exit day, and(b) an assessment of how not implementing amended provisions or definitions in domestic law will impact gender equality and work life balance in the United Kingdom.”

[Baroness Lister of Burtersett]

My Lords, this amendment stands in my name and those of the noble Baronesses, Lady Altmann, Lady Burt and Lady Greengross, whose support I very much value. I also thank Working Families for its assistance.

The amendment would simply require the Government first to report to Parliament on developments in EU law in the areas of family-friendly employment rights, gender equality and work/life balance for parents and carers which would have affected UK legislation had we remained in the EU, and then to consider whether they should incorporate these changes into domestic law to ensure that such rights are not diminished or are no less than they would have been were the UK still a member of the EU. What it does not do is bind the UK to implement future EU law. While it is essentially a probing amendment, I hope to convince your Lordships that it goes with the grain of government policy and therefore there is no reason for the Government not to accept it or bring forward some other version of it. If the Minister cannot give me such an assurance, we may want to come back to this on Report.

In their note on equality legislation and EU exit, the Government rightly point to the UK’s rigorous domestic equality legislation, part of which predates or goes beyond EU provision. The same is true up to a point when it comes to family-friendly and work/life balance provisions. But, as the Government acknowledge, only part of our legislation predates or goes beyond EU provision. There is wide agreement that, in the words of the Equality and Diversity Forum, the EU,

“has been an important driver for improvements which have benefited us all”—

and, I add, women in particular. An example is the pregnant workers directive, which, as Working Families attests from its helpline, has been crucial in helping protect women from pregnancy discrimination or maternity discrimination, although a recent EHRC report shows that it is still all too common. It is worth noting here that according to new analysis published in the journal Social Policy and Society, these pregnancy and maternity rights were watered down by the then UK Government during negotiations. Other examples of EU-driven legislation include the original right to parental leave, equal rights for part-time workers and the concept of equal pay for equal work of equal value, which strengthened our own pioneering equal pay legislation immeasurably.

The Joint Committee on Human Rights 2016 Brexit report likewise noted that:

“EU law has been described as the engine that hauled the development of UK anti-discrimination law”.


Yet the Minister gave the committee,

“no commitment that the government would monitor or take account of EU law developments”.

That, it observed, “may prove significant”, especially so because we know there are a number of important directives in the pipeline, one of which is explicitly included in proposed new subsection (3)(c) in the amendment, a directive on work/life balance for parents and carers. This includes two measures on which I and many outside organisations have campaigned for many years: improved terms of paid parental leave and the introduction of paid carer’s leave. I stress that work/family life balance is of increasing importance to men, as it has traditionally been to women. I am sure that the noble Baroness, Lady Burt, will say more about parental leave, because she has repeatedly raised the failure of the shared parental leave scheme to achieve its aim of significantly increasing fathers’ take-up of the leave.

The draft directive would provide four months of non-transferable leave for both fathers and mothers, paid at a minimum of statutory sick pay levels. This could provide just the kind of boost needed to encourage greater paternal involvement. I hope and trust that whatever happens to this amendment, the Minister can give us an assurance that the review currently taking place of shared parental leave will include consideration of the directive.

In addition, the draft directive includes a right to five days of carer’s leave a year, also paid at a minimum of statutory sick pay levels. As a vice-chair of the All-Party Group on Carers, I have been convinced of the importance of the case made by Carers UK and others for a period of such leave. As Carers UK argued in a report making the case:

“The evidence base for supporting working carers is growing, and it is compelling”.


Around 3 million people—one in nine members of the workforce—combine working with unpaid care for a loved one, and the numbers are predicted to grow as the population ages. The danger is that without the safety net of the right to a few days’ paid leave a year, carers will either reduce their hours or give up paid work altogether, which, as the Women and Equalities Minister said, is “a huge loss” both to them and the economy. Welcome as it is, the impact of the fund to help carers return to work in the private sector that she just announced will be reduced if it is not backed up by carer’s leave. The state pensions reviewer highlighted this issue recently and recommended statutory carer’s leave. Care leave is becoming increasingly common across the world, and if we do not keep up with our European neighbours on this matter we will fall further and further behind.

The question of future EU directives was also raised in the Women and Equalities Committee’s Brexit report. The government response stated:

“The UK Government’s record on equalities is one of the best in the world and we are determined to ensure that this remains the case … We are committed to protecting and promoting equality and to eliminating discrimination—leaving the EU does nothing to change this”.


This amendment does no more than to support, help and promote this commitment.

I will not take up time by detailing the depressing evidence from the Working Families 2018 Modern Families Index, which shows just how far we still have to go to achieve genuinely family-friendly employment, and therefore how important it is that we keep pace with EU developments. But such evidence is also there in the work of Carers UK and other organisations, which are calling for some way of keeping pace with EU developments—notably the EHRC, the TUC, the Fawcett Society and the Fatherhood Institute. In addition, new public attitude research by the IPPR indicates strong public support for continued alignment with the European economic and social model, regardless of the position taken on the referendum.

When a similar new clause was moved in the Commons in the name of Ellie Reeves and a number of other MPs, it was given short shrift by the Minister and rejected in two sentences on the grounds that it,

“suggests a procedural device for incorporating certain EEA-related rules into UK law. This is entirely unnecessary given the wider snapshot of EU law this Bill will take at the point of exit”.—[Official Report, Commons, 21/11/17; col. 904.]

That was entirely to miss the point. It is not about incorporating existing rules, which, as the Minister said, will be done as part of the wider snapshot, and of course government assurances with regard to existing equality and employment rights are welcome, even though they have not convinced everyone. Similarly, the government amendment to Schedule 7, ensuring transparency in any changes to equality legislation and placing reporting obligations on government, is welcome as far as it goes, although it does not go far enough, despite the assurances in the Minister’s helpful letter to Peers.

Snapshots are static. The whole point of this amendment is to recognise that the world is not static—it will not be frozen in aspic on the day we leave the EU. Indeed, just the other week the Brexit Secretary assured business leaders in Vienna that Britain will remain a “dynamic and open country”. This amendment is all about dynamism and openness to change in the wider continent of Europe. Mr Davis continued that Britain will be leading,

“a race to the top in global standards”.

That is great, but how can it do so without ensuring that Parliament is informed about, and is able to consider changes in, such standards among its closest neighbours? In this spirit, I call on the Government to accept this amendment, or some version of it, to ensure that we do not lose the race in global standards of equality, family-friendly employment and work/life balance. Doing so would act as an important symbol that they are prepared to translate the Brexit Secretary’s fine words into deeds. I beg to move.

[Baroness Burt of Solihull (LD)]

My Lords, I support this small suite of amendments, to which I have added my name. We have heard from the noble Baroness, Lady Lister. Her excellent speech leaves very little for me to add and I will test the patience of the Committee by making only a couple of brief points.

I emphasise that Amendment 40 is not a grab for any further powers to keep the EU linked to Britain post Brexit. We merely wish to ensure that the UK Government consider any future EU developments in the areas of family-friendly employment rights, gender equality and work/life balance. I hope that the UK would be ahead in these areas, as in the past we have been a leader in these fields. Indeed, we may well introduce changes which the EU would do well to consider.

The noble Baroness, Lady Lister, referred to an EU directive coming down the line on shared parenting, the uptake of which in this country needs considerable improvement. The noble Baroness, Lady Williams of Trafford, has graciously agreed to meet me and others to discuss some of the proposals that we have been working up. However, that is for the future.

Right now, with suggestions that we could be jettisoning our membership of the European Court of Justice and with talk of leaving the European Court of Human Rights, some colleagues on these and other Benches fear that our proud record of leadership in these areas will be lost and that the United Kingdom will enter a race—not to the top, as Minister David Davis has suggested, but in the opposite direction, to the bottom. Amendments 89A, 129A and 157A would simply enshrine in law the certainty that existing EU protections relating to families in the workplace could not be changed or got rid of under secondary legislation.

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[Lord Duncan of Springbank]

The noble Baroness makes an interesting point as to why people have not been able to hear these points, but I am iterating what the Prime Minister, and a number of other Ministers in the Government, have said as regards this, and am pleased if I have been able to cut through some of the hubbub that has surrounded it. We are and remain a Government committed to ensuring that on day one after Brexit there is no diminution whatever in the rights which are and have been enjoyed through our membership of the EU. It is important to stress that. I hope I have been able to give noble Lords some reassurances this evening and some confidence that they will be able to set aside these amendments on this occasion.

[Baroness Lister of Burtersett]

My Lords, I am grateful to noble Lords who have spoken from across the Committee in support of this amendment—with one exception of course, the noble Lord, Lord True. I cannot help but point out that there is a certain irony that the longest speech came from the noble Lord who complained that we were wasting time. He took, I think, nearly a fifth of the non-ministerial time in order to tell us we were wasting time.

[Lord True]

I will rise to the bait. It is clear that one is going to be characterised and monstered, but the reality is that I very clearly set the remarks I made in the context of the four days that we have already had and the 13 days, at this rate of progress, it will take to complete Committee. I also made it very clear that I regarded the rights that are being discussed as important and hoped that the noble Baroness would see all that she hoped for come to fruition. I was as delighted as the rest of the Committee by what we heard from the Front Bench.

[Baroness Lister of Burtersett]

As some of my noble friends have said, it is odd that it is this amendment, when we are talking about women, families and carers—

[Lord True]

My Lords—

[Baroness Lister of Burtersett]

I think I should carry on. The noble Lord asked a question, to which the noble Baroness, Lady Altmann, gave a very clear answer, but perhaps the best answer came from the Minister himself. I thank him for his very courteous response and for his acknowledgement that this is a very valid amendment and debate, which we should be having. I very much welcome his categorical assurance that there will not be a watering down of the working time directive, and I know many other noble Lords welcome that as well. But I am puzzled. Yes, he has given assurances about not watering down existing rights, which is very welcome indeed, but I have not heard an argument against my amendment about keeping pace with what is happening in the European Union in the future. He was asked why he was not able to support the amendments, given the very positive stance he was taking, and I did not hear an answer to that. I am not going to pursue it now, but given his positive stance, and at the same time his failure to give arguments against this amendment, we may well want to return to this on Report. I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

European Union (Withdrawal) Bill

Baroness Lister of Burtersett Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Faulks]

The Government’s position has been made quite clear: they have no intention of repealing the Human Rights Act. It is perfectly true that the previous Government said that they would consult on the question and bring in a British Bill of Rights, which would not mean departing from the European convention. Of course, I understand that there are those who are suspicious of this Government’s motives—I do not speak for the Government—but if a Government were hell-bent on getting rid of human rights, they would of course be able to get rid of the charter as well. I do not accept the sinister interpretation of the noble Baroness. The intention is simply to achieve clarity; that is what the Bill is about.

[Baroness Lister of Burtersett (Lab)]

The Conservative manifesto said:

“We will not repeal … the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament”.


When the Minister replies, can he give us an assurance about the long-term commitment of the Conservative Party to the Human Rights Act?

[Lord Faulks]

No Parliament can bind its successor; one would expect every Government to consider human rights as an ongoing process, and how best to protect them.

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Time does not allow me to mention other cases. Earlier I mentioned the European arrest warrant, which would not work without the charter. Data transfers are the same. There was another speech this evening by a junior Trade Minister assuring the tech industry that there would be frictionless, seamless data flows after Brexit. That will not happen without the Charter of Fundamental Rights in domestic law. As the noble and learned Lord, Lord Goldsmith, said at Second Reading, wanting to make the Bill fit for purpose is not putting a spanner in the works: it is making the Bill actually work.

[Baroness Lister of Burtersett]

I will make one brief point that no noble Lord has yet made about Northern Ireland, which I know is of concern to many Members of this House. At Second Reading, citing the Bingham centre and Lady Hermon, I asked the Minister to explain how the requirement in the Good Friday agreement for an equivalent level of human rights protection in Northern Ireland and the Republic would be maintained if the citizens of the former could no longer look to the charter. In his helpful letter to Peers, the Minister pointed out that the agreement preceded the charter and, as the charter is therefore not referenced in the agreement, the Bill should not affect our obligations to it. But the point is about equivalence. If the charter now applies in the Republic and not in Northern Ireland, with the loss of various rights in the latter, I ask again how that equivalence is to be maintained.

[Baroness Deech]

I will make a point that has not been made before. The charter has never been scrutinised by this House. If it had been, we would not have this lack of clarity. I have more confidence in the ability of our Supreme Court to protect us than I have in the ECJ. Bearing in mind what the noble Lord, Lord Cashman, said, what a failure the charter has been across Europe. The Roma are being persecuted, migrants are not getting proper treatment, the leaders of Catalonia are being locked up and extremist, right-wing parties are on the march. Freedom House is marking down European countries; they are sliding away from human rights. I am not proud of the charter; it has not worked in Europe. We are much better off with something home-grown and administered by our Supreme Court.

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[Lord Keen of Elie]

Quite simply because, as I indicated earlier to the Committee, the rights underpinning the charter exist elsewhere than in the charter and it is not necessary to incorporate the charter into domestic law in order to find those fundamental rights in our domestic law after we leave the EU.

[Baroness Lister of Burtersett]

I am sorry to interrupt, but the analysis by the Joint Committee on Human Rights to which the noble Baroness referred, which is an analysis of the Government’s analysis, identified a number of rights that are not there other than in the charter. Does the noble and learned Lord reject the JCHR’s analysis?

[Lord Keen of Elie]

We have considered that analysis, and that is why I indicated that we were still looking at this. As I said, if rights are identified which are not in fact going to be incorporated into our domestic law in the absence of the charter, we will look very carefully at ensuring that those are not lost.

Clause 5(5) makes it clear that, notwithstanding the non-incorporation of the charter, retained EU law will continue to be interpreted by UK courts in a way that is consistent with the underlying rights. I hope that addresses to some extent the issue raised by the noble and learned Lord, Lord Wallace, in that context. Interpretive provisions will retain a means by which we can look at these rights in the proper context.

With regard to those who have expressed concerns about this Bill resulting in a loss of substantive rights, I repeat—as the noble and learned Lord, Lord Goldsmith, has done, at least prior to his recent Pauline conversion—that it is not necessary to retain the charter to retain those fundamental rights. If we see that there is a potential loss of such fundamental rights, we will address that, and that is what we have indicated.

Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) (Amendment) Regulations (Northern Ireland) 2017

Baroness Lister of Burtersett Excerpts

Wednesday 6th December 2017 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I thank the noble Lord, Lord McAvoy, for bringing this regret Motion before your Lordships’ House this evening, and I echo many of the points that he raised. On these Benches, we deeply regret that the Government brought forward these caps on child tax credits. We do, however, acknowledge the establishment of certain exemptions to the cap for those who do not have the same control as others in choosing the number of children in their family—for example, in the specific circumstances of multiple births, adoption and following rape.

The Liberal Democrats would abolish the two-child limit because we believe that there is no way to enforce a two-child policy without something like a “rape clause”, which can be both degrading and humiliating for the women concerned, and because we believe that the policy can lead to an increase in child poverty, as families are punished for their decisions, which are often outside of their control. As the noble Lord, Lord McAvoy, has already said, there are several very specific circumstances surrounding current legislation in Northern Ireland that make the situation there even more unacceptable, and at times personally tragic, for many women and families.

The combination of the existing abortion laws in Northern Ireland, which mean that abortion is in effect illegal in the majority of cases, and Section 5 of the Criminal Law Act (Northern Ireland) 1967, which requires a person who becomes aware of a crime to disclose it to the police, both have a direct impact on the women concerned as well as the healthcare professionals and legal professionals who try to assist them. This is particularly relevant to these regulations due to their provisions regarding rape. Not only is abortion outlawed in Northern Ireland, including in the case of rape, but impartial advice on the subject for the victim following a rape is significantly restricted.

Women in Northern Ireland who have been raped will have access to neither abortion advice nor services. If they have a child as a result of rape, they will then have to face reliving their experience in order to access benefits for the child. Furthermore, it is still to be seen whether healthcare professionals will receive the necessary training or support when assessing victims of rape for universal credit. My colleagues in the Alliance Party in Northern Ireland have spoken to the Royal College of GPs, the Royal College of Nursing, the Northern Ireland Association of Social Workers, the British Medical Association and the Royal College of Midwives. None of those organisations has reported receiving training or support. Does the Minister agree that this is a situation which needs to be urgently rectified?

One of the most significant failings in these regulations, as the noble Lord, Lord McAvoy, has already said, is the lack of thought given by the Government to the impact of how the separate Northern Ireland legislation under Section 5 of the Criminal Law Act (Northern Ireland) 1967 would impact on victims of rape. As a result of this legislation, both the rape victim disclosing information to gain universal credit for their child, and the person they are disclosing this information to, could be open to prosecution for not reporting the crime to the police. Surely that is a totally unacceptable situation in the 21st century. The Liberal Democrats voted against the two-child limit which has caused the need for this degrading process for the victims of rape, and we continue to believe strongly that this policy should be reversed.

[Baroness Lister of Burtersett (Lab)]

My Lords, in a recent blog to mark the 50th anniversary of the Social Policy Association—I declare an interest as its honorary president—the internationally respected Professor Emeritus of Social Policy, Jonathan Bradshaw, asked:

“What is the worst social security policy ever?”.


The answer was the two-child policy. He described it as discriminatory and morally odious and noted that the exceptions would be “unpleasant to operate”. It is these exceptions that the regulations enact, but they cannot be understood or debated separately from the policy they mitigate, as the noble Baroness has explained, because they do so at potentially considerable human cost, particularly in Northern Ireland.

Analysis by the Child Poverty Action Group—again, I declare an interest as honorary president—and the Institute for Public Policy Research indicates that once universal credit is fully rolled out, the policy will result in an additional 200,000 children and 100,000 adults in poverty. It will also mean many larger families who are already in poverty—and remember that larger families are already at greater risk of poverty—will be pushed further below the poverty line, leading to greater hardship and deprivation.

Like the benefit cap, the two-child limit breaks the link between children’s needs and the support that Parliament has deemed necessary to meet those needs. Third and subsequent children are deemed less worthy of that support on totally spurious grounds. A number of organisations have argued that the policy and hence regulations contravene our international human rights obligations by in effect restricting women’s reproductive rights and discriminating against those with a faith-based objection to contraception or abortion, which is especially likely in Northern Ireland.

Will the Minister explain how the policy gives primary consideration to the best interests of those children with the misfortune of being born after two siblings? The UN Committee on Economic, Social and Cultural Rights has already expressed concern and I am pleased to say that the CPAG has been given leave to seek a judicial review of the limit on human rights grounds.

As human rights arguments do not appear to concern the Government, perhaps the likely unintended consequences will do so—that it could lead to families splitting up or lone parents being reluctant to repartner with someone who already has a child.

We are still awaiting a proper family impact statement of the policy. Earlier this year the Prime Minister answered a question on what has come to be known as the “rape clause” by invoking the “principle of fairness”, which she asserted underpinned the two-child limit because,

“people who are on benefits should have to decide whether they can afford more children, just as people in work have to make such a decision”.—[Official Report, Commons, 26/4/17; col. 1107.]

Leaving aside the erroneous assumption that these are two distinct groups and the fact that the majority of those affected will be parents in paid work because of the interaction with the benefit cap, where is the fairness in a policy that penalises families retrospectively for a decision to have another child which may have been made in more propitious economic circumstances? At least the full impact of its retrospective application will not be felt until after January 2019, when new claims from larger families will no longer be routed back to tax credits.

Where is the fairness in regulations which say that adoptive parents or kinship carers are exempt if they adopt or take on a third or subsequent child but are not exempt if they want to have a child of their own and this takes them over the limit because of the presence of an adopted or looked-after child? This was one of the issues raised by the Secondary Legislation Committee. Where is the fairness in a policy that faces a woman who is, say, pregnant because of contraception failure, with the choice between deeper poverty and an abortion; or which condemns her to greater poverty because she was unable to get an abortion due to the lack of specialist doctors—a problem highlighted recently by the president of the Royal College of Obstetricians and Gynaecologists? While the extension to Northern Irish women of the right to an NHS-funded abortion in England is welcome, exercising that right will not necessarily be easy, especially for women with limited resources or who want to keep their abortion secret for whatever reason, and we should remember that many live in small and/or rural communities. That is one reason why this policy and these regulations are particularly unfair and pernicious in a Northern Irish context.

The noble Lord, Lord Patten, referred to the parity principle, but surely parity does not mean that local circumstances cannot be taken into account. In its report on the earlier regulations, the Secondary Legislation Scrutiny Committee warned:

“The practicalities of applying these requirements in Northern Ireland will need to be fully thought through before the equivalent regulations are brought forward”.


That is some hope. Instead, as the committee notes in its latest report, they,

“exactly mirror the mainland Regulations, with the exception of the start date”.

The committee concedes that the Explanatory Memorandum “nods to the concerns” it had expressed, but observes that it is not “entirely clear”. What is clear is that the further clarification provided by the Government has not allayed concerns.

Those concerns have been clearly articulated by the Women’s Aid Federation Northern Ireland; I am grateful to Louise Kennedy for her briefing. They relate to the notorious “rape clause” exemption that we have already heard about, which now also includes a conception in the context of a controlling or coercive relationship—a rare and welcome example of the Government taking the overwhelmingly critical responses to the consultation exercise on board. However, I am advised that there is no coercive control law in Northern Ireland, nor sufficient public or professional understanding of the concept for it to provide an effective exemption there.

As the regret Motion states, and the Secondary Legislation Scrutiny Committee drew attention to, there is deep concern in Northern Ireland, as we have heard, about the interaction between the legislation and the criminal law, which could lead to the criminalisation of a woman who has been raped, or a third-party assessor where the rape is not reported to the police. Many women do not want to engage with the criminal justice system and should not be put in the position of having to make such an invidious choice. Likewise, it raises serious ethical questions for social workers and voluntary organisations accredited as third-party assessors. I believe that some are refusing to carry out such assessments, or at the very least are supporting any individual member who refuses to do so on ethical grounds.

I am aware that the Government have given assurances that no one has ever been prosecuted for not reporting a rape, and that the rape clause assessment is effectively a tick-box exercise that does not require probative questioning. Yet, as my noble friend said, Northern Ireland’s Director of Public Prosecutions has confirmed that both victims and third parties are potentially liable to prosecution. If it is just a tick-box exercise, why can the woman not simply tick the box herself without being interviewed by a third-party assessor?

The Secondary Legislation Scrutiny Committee warns that the potential threat of police involvement,

“must make it likely that some women will not claim the benefit”,

to avoid that risk. It states:

“As a result they will lose the additional funds to which they would otherwise be entitled and the policy will therefore not operate as intended”.


Other concerns raised by Northern Ireland Women’s Aid apply more widely. It argues that forcing rape victims to disclose their ordeal before they are ready can retraumatise them and exacerbate mental health issues arising from sexual assault. It states that it is,

“contrary to all good practice relating to victims of sexual abuse and is clinically unsafe”.

The BMA has condemned the policy as “fundamentally damaging to women”.

Women’s Aid also questions the requirement that the woman is no longer living with her rapist. They point out that much sexual violence and rape occurs within the context of domestic violence and is more difficult to disclose, and that leaving such a relationship is a time of particular danger. A similar concern was raised in submissions to the Secondary Legislation Scrutiny Committee, which underlined that it shared this concern. The Explanatory Memorandum acknowledges that,

“not all victims will feel able to leave the perpetrator”,

but justifies the policy on the grounds that otherwise, the alleged perpetrator could benefit financially from the abuse because of joint payment of universal credit. Surely a split payment could be made to avoid this? It seems a flimsy argument, especially given the growing difficulty that women have in accessing refuges, which is likely to be exacerbated if the threatened change to the funding regime goes ahead.

In conclusion, needless to say, I strongly support my noble friend’s regret Motion, but I regret even more the unfair and, to quote Professor Bradshaw once more, “morally odious” policy from which these regulations derive. The sooner this policy is ended, the better.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Baroness Lister of Burtersett Excerpts

Tuesday 25th October 2016 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, the UN Committee on the Rights of the Child and the Equality and Human Rights Commission recommended that the review of the impact of LASPO on children should be expedited. Can the noble and learned Lord say what the Government’s response is to these important recommendations?

[Lord Keen of Elie]

A number of parties have raised the question of review of the impact of LASPO. The government position remains, as I outlined earlier, that we will carry out the appropriate review by April 2018.

Immigration Bill

Baroness Lister of Burtersett Excerpts

Monday 1st February 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, I hope it may be for the convenience of the Committee if I observe that, with regard to Amendments 220, 222 and 223, which raise the question of bail conditions and the Secretary of State’s proposed power to address conditions already set by the tribunal, I recognise the important constitutional issues that the noble Baroness, Lady Hamwee, has raised. Given the proposed amendments from all sides of the Committee and the concerns expressed by the Constitution Committee and the Joint Committee on Human Rights with regard to this matter, the Government will think again about this. We anticipate bringing forward before Report a suitable amendment to Schedule 7 with respect to bail conditions. I hope that this assists the Committee.

[Baroness Lister of Burtersett]

Very briefly, I support Amendment 215A because I absolutely agree that this is not a trivial matter. I am not an expert on these issues but a social scientist who knows the importance of language. Some years ago, it was quite common among the media and politicians to talk about bogus asylum seekers. That did immense harm, so I absolutely agree that language which has connotations of criminality when applied to asylum seekers is totally inappropriate and could be very harmful.

[Lord Alton of Liverpool]

My Lords, I intervene briefly to support the point that the noble Baroness, Lady Lister, and previously the noble Baroness, Lady Hamwee, have made about the importance of the language we use. When the Minister comes to consider this issue again between now and Report, I wonder whether he will look at the nomenclature that we use here and whether “immigration bail”, with its connotations of criminality, really is the right language for us to use at all. In particular, people seeking asylum are not criminals when one considers that they will include refugees, children, survivors of torture and trafficked people. It is quite wrong to imply that they are necessarily people who are therefore trying to break our laws.

I hope that the Minister will also return specifically to the point made by the noble Baroness, Lady Hamwee, about our duties under international law, especially Article 31 of the 1951 refugee convention, which expressly protects those who claim asylum from being treated as criminals. The UNHCR and other international guidance recognises that the detention of persons seeking asylum must always be the exception, so let us at least start from the basis that those seeking asylum will be among people who are genuine. They will be trying to escape from the most appalling situations in their own countries and are not criminals. We therefore must have some regard for their well-being and status.

I would like to raise one other brief issue in relation to Schedule 7, which is not covered by these amendments but on which I hope that the Minister will be able to provide some clarification. It appears that the introduction of a restriction on studies as a condition either of temporary admission or bail for those subject to immigration control is a new provision. I would be grateful if the Minister would spell that out. No reason for the restriction is given in the Explanatory Notes to the Bill, so I wonder whether we could take this opportunity in Committee to find out what that reason is. Breach of a condition of immigration bail is, as we have just discovered in these exchanges, a criminal offence and therefore has serious consequences. Those lawfully present and in touch with the authorities should not be restricted from undertaking studies. All those subject to immigration control will be on immigration bail, not just persons released from detention. The condition could potentially be applied to children and young people, preventing them accessing further education and even attending their school. I am sure that that is not what the Government had in mind but I hope they will clarify what the consequences of this provision might be.

Immigration Bill

Baroness Lister of Burtersett Excerpts

Monday 1st February 2016 Lords Chamber

[Baroness Hamwee]

My Lords, were my noble friend Lord Avebury able to be here, I think he, too, would have started with short-term holding facilities. I feel I am letting him down by not having a specific amendment on the point.

When the all-party group undertook its inquiry, to which much reference has been made, I was particularly struck by the paradox of detainees both fearing and hoping for sudden change—or that things would stay the same way. It was well expressed by Dr Melanie Griffiths, who is quoted in the report as saying:

“By being detained indefinitely, without knowing how long for and with the continual possibility of both imminent release and removal, detainees worry that detention will continue forever and also that it will end in unexpected deportation the next morning. They have the simultaneous concern both that there will be sudden change and never-ending stasis. It is the lack of temporal predictability that prevents deportable individuals not only from being able to plan for the future, but also from having the ‘stability’ of knowing that the present will remain uncertain for a protracted length of time”.

A number of these amendments are concerned with time limits and timescales. The inquiry made a number of recommendations and comments, one of which was about the link with mental health. As the report expresses it, there is,

“a considerable mental health cost to detainees”.

The report also said that,

“the lack of a time limit, far from aiding Home Office effectiveness, was itself an incentive to poor case-working”.

The Government say that an arbitrary time limit is unnecessary, because we should have whatever is reasonable—although of course what is reasonable is often in the eye of the beholder. They also say that an arbitrary time limit—“specific” would perhaps be a better word—would become the norm and an incentive for non-compliance. However, those of us advocating a time limit do not wish to overlook the individual characteristics or indeed the changes over time and the changes of combinations of factors which may apply to individuals. We do not like a tick-box approach to vulnerability.

There are a lot of amendments in this group. I have signed up to all of those in the name of the noble Lord, Lord Ramsbotham, and started by supporting Amendment 218, which is the straight 28-day amendment, rather than the proposal for a review, which is in the first of the amendments in the group. After the Shaw report was published, and after we had addressed the issue at Second Reading, I discussed with the noble Lord, the noble Baroness, Lady Lister, and other members of that inquiry whether we might look for an alteration—I was going to say slight relaxation, as it were, but that would be a very bad term for me to use in the context—to the 28 days in the event of something exceptional.

The first of the two approaches in Amendments 218A and 218B is that the Secretary of State would go to the tribunal on the basis that bail is not in the public interest. I hope that would answer the critical comments made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, at Second Reading that there must always be some exceptions. We have had a go at a reference to offences which are in Schedule 4 to the Modern Slavery Act. That was suggested by somebody who has been concerned with this subject for a long time. I am not sure that it would be my preferred approach, but the intention was to present some possibilities to the Government as to how they might achieve 28 days, or a specific time limit, but with any absolutely necessary exceptions.

The other amendments—particularly Amendments 216ZA, 216ZB, 216ZC and 216ZD—are drafted directly from the Shaw report in the hope that the Government will give a detailed response to each of them. As the noble Lord said, we had a short response in the Written Ministerial Statement. I hope that the Minister, whose task tonight is considerable, has been briefed to give a response to each point. We could have tabled 64 amendments but that might have tested the patience of the Committee a little too much. Of course, none of this actually needs legislation; the Government could just get on with it. The essential items that lend themselves to an amendment are ones to which I and, I know, others would like a detailed and specific response.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to support the various amendments in this group, focused in particular on the case for a time limit and for the absolute exclusion from detention of pregnant women.

As has already been said, like the noble, Lord Ramsbotham, and the noble Baroness, Lady Hamwee, I was a member of the all-party parliamentary inquiry into detention. Unlike them, I knew very little about detention beforehand and so was perhaps the more shocked by what I heard from both professionals and people who had been detained. One message that hit me with particular force was the impact of detention on the mental health of detainees—we have heard a bit about that already. It is clear that this was true for Stephen Shaw, too. In his very fine report, he states at the outset that,

“the impact of detention upon detainees’ mental health, has been at the heart of this review. For that reason alone, it is not possible to distinguish the fact of detention from the consequences for welfare and vulnerability”.

He based this conclusion in part on a literature review by Professor Mary Bosworth, to which my noble friend Lord Rosser referred and which Shaw suggests was perhaps the “most important contribution” made by his report. He concludes that it,

“demonstrates incontrovertibly that detention in and of itself undermines welfare and contributes to vulnerability”.

Professor Bosworth’s review found a clear link between duration of detention and mental health outcomes. She also points to qualitative studies that indicate that the uncertainty arising from no time limit creates additional difficulties, and concludes that in the absence of clinical studies,

“it is clear at the very least that uncertainty makes detention more difficult”.

That resonates with what we heard in our inquiry. For instance, Dr Robjant of the Helen Bamber Foundation told us that its clients talk about it increasing their sense of hopelessness and despair.

Despite the restrictions placed on his remit, Stephen Shaw raised serious questions about numbers detained, the length of detention, the impact of the unknown length of detention on vulnerability, and the need for alternatives. He emphasises from the outset that his recommendations, in themselves, do not go far enough. We must take seriously what in my view is a clear steer that we need to go beyond recommendations designed to mitigate the “diswelfares” associated with detention, important as they are, and address the underlying question of the role of detention itself, and in particular the question of the absence of a set time limit on its duration.

Since the parliamentary inquiry’s report, the UN Human Rights Committee has recommended that the UK introduce a time limit. In oral evidence to the Public Bill Committee on this Bill, a representative of the UNHRC stated that his one wish would be the introduction of a time limit on detention—which, he underlined, was within the scope of the Bill. In addition to the unanimous vote in the other place in support of our inquiry which has already been mentioned, there was strong support for a time limit when the report was debated in your Lordships’ House in March, including from the former Home Secretary, the noble Lord, Lord Hurd of Westwell, who deemed it “deeply unsatisfactory” that detainees,

“have no certainty in their lives about when they might be removed from detention”.—[Official Report, 26/3/15; col. 1569.]

This point was echoed by the noble Lord, Lord Cormack, who said that,

“it is worse than that, because it deprives people of hope”.—[Official Report, 26/3/2015; col. 1578.]

We have heard other arguments in favour of a time limit, which I shall not go into. Let us now use the opportunity of this Bill to provide hope for migrants and asylum seekers deprived of their liberty by a detention system shown to be deeply unsatisfactory by legislating for a time limit and encouraging the Government to develop effective community alternatives.

--- Later in debate ---

[Lord Green of Deddington]

Yes, I certainly agree that detention is a very expensive business in all circumstances; that is true. The people I would be most concerned about are those who plan to come here as economic migrants and who would have no right of asylum. They are the people who need to be deterred. It is not so much public opinion; it is having an asylum system which is seen to be effective. By all means, people who have been tortured need to be dealt with, but it would surprise me if many were actually in detention. They would not be there if their cases had not been heard and refused by the immigration courts.

[Baroness Lister of Burtersett]

I am not sure whether the noble Lord has read the report of the inquiry to which a number of us contributed, but we did quote from the International Detention Coalition about the experience in countries that do not rely so much on detention. The noble Lord seems to be worried about what that might mean in terms of the effect on compliance. The coalition found that alternatives to detention,

“maintain high rates of compliance and appearance, on average 90% compliance. A study collating evidence from 13 programs found compliance rates ranged between 80% and 99.9%. For instance, Hong Kong achieves a 97% compliance rate with asylum seekers or torture claimants in the community, and in Belgium, a pilot working with families facing removal had an 82% compliance rate”.

Alternatives to detention have proved to be very effective and can address some of the concerns of the noble Lord.

[Lord Green of Deddington]

Yes indeed, but I would imagine that the conditions are very different in Hong Kong and to a certain extent in Belgium. You have to look at the circumstances that you find in a particular country. What we have here is a very large illegal population which people can quite easily join. I am not against looking at the kind of alternatives being suggested, but let us be pretty sure that they are going to be just as effective. Any move at this point to weaken, not so much the asylum system but our capability to remove those who have failed asylum, would be an extremely foolish step to take.

--- Later in debate ---

[Baroness Lister of Burtersett]

I may be pre-empting what the noble and learned Lord is about to say. However, Stephen Shaw is very clear that presumptive exclusion should be replaced with an absolute exclusion. The noble and learned Lord talks about strengthening presumption. That is qualitatively different from absolute exclusion. Do the Government accept the recommendation of absolute exclusion and, if not, why not?

[Lord Keen of Elie]

The present published guidance means that we do not, and should not, detain pregnant women except in exceptional circumstances. There are, in fact, very few pregnant women in the estate. The Government are reflecting on how to implement Stephen Shaw’s policy in regard to adults at risk, and will address that in due course. However, as I say, it will be a matter of guidance.

[Baroness Lister of Burtersett]

I am sorry to press this. I accept that it is a matter of guidance. We put it in an amendment to have a debate on it. However, it seems to me that there is an attempt to slide out of answering the question of whether presumptive exclusion in the guidance will be replaced by absolute exclusion, because that is very clearly what Stephen Shaw recommended. I am not getting a clear answer on that.

[Lord Keen of Elie]

The clearest answer I can give is that it is a matter for consideration at present by Ministers. They will consider it because they have already said that. They noted the recommendations in Stephen Shaw’s report. They have not yet determined in a black and white way that they will implement all 64 recommendations and no one would expect them to have done so in this timescale, but they will address them.

--- Later in debate ---

Published statistics show that the majority of individuals leave detention after 28 days or fewer, with over 90% having left detention within four months. The facts do not bear out the accusation that immigration detention is indefinite. Yes, there are exceptional cases, and one can often cite those without regard to the exceptional facts that lie behind them. Again, without full knowledge of the facts of those individual cases, it is very difficult just to take them out of context and say that there are people who have been there for X period of time.

[Baroness Lister of Burtersett]

I am sorry to intervene again, but “indefinite” does not mean that people are there for ever. It means that people do not know how long they will be there, and that is what has had the terrible psychological impact on people. From that perspective it is “indefinite”, because there is no clear time limit that gives people certainty and hope.

[Lord Keen of Elie]

With respect, it is not possible to say to somebody that they will be in detention for X period in this context. For example, if they choose not to co-operate by producing any documents, or they do not tell the truth about their point of origin or their journey—where they arrived in Europe, for example—it may be very difficult to investigate their circumstances, and they may yet during that period pose a risk, whether to the public or otherwise. Therefore, detention is not necessarily, and cannot be, dictated by reference to a fixed period. But of course, it is open to them to go to a tribunal and apply for bail—and that is the whole point. So it is not, in that sense, indefinite: they have the opportunity to canvass before the tribunal the issue of whether or not they should remain in detention.

At Second Reading, we heard a number of noble Lords speak on detention. As has been said, there was a contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He rightly identified that:

“There are two basically different circumstances in which people are detained under the legislation: first, on initial application for asylum and, secondly, when, much further down the line, it is sought to remove people whose rights of whatever sort have expired and it is proposed that they finally be deported”.—[Official Report, 22/12/15; col. 2473.]

The detained fast track generally related to the first category that the noble and learned Lord, Lord Brown, identified. Many noble Lords will be aware that the detained fast track has been suspended since July following my right honourable friend the Immigration Minister’s decision that he could not be certain of the level of risk of unfairness to certain vulnerable applicants who may enter the process. I can confirm to the noble Lord, Lord Rosser, that the detained fast track will remain suspended until my right honourable friend is sure that the right structures are in place to minimise any risk of unfairness and that effective safeguards can be put in place. A Statement will be made when that point is reached.