UK Opt-in to the Proposed Council Decision on the Relocation of Migrants within the EU (EUC Report)
Baroness Prashar Excerpts(8 years, 9 months ago)
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Baroness Prashar
That this House, while noting that Her Majesty’s Government are minded not to opt into the proposed Council Decision establishing provisional measures in the area of international protection for the benefit of Italy and Greece, agrees the recommendation of the European Union Committee that, should an amended or a new proposal be brought forward giving effect to the European Council’s Conclusions in April and June 2015, the Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, to take part in the adoption and application of that proposal (2nd Report, HL Paper 22).
Baroness Prashar (CB)
My Lords, I beg to move this Motion as chairman of the EU Home Affairs Sub-Committee, which prepared the report to which the Motion relates. I thank all members of the sub-committee, the clerk to that committee, Theo Pembroke, and the policy analyst, Lena Donner, for their assistance with the preparation of the report.
As your Lordships know, when the House considers reports from the European Union Committee, it is normally on a Motion that the House takes note of the report. In this case, the Motion invites the House to agree the committee’s recommendations. The reason is that this report deals with a proposed European Council decision, which falls within the area of justice and home affairs and which will apply to the United Kingdom only if the Government exercise their right under protocols to the EU treaties to participate in its negotiation, adoption and implementation—in other words if the Government, having taken into account the views of the committee, opt in. The Government have to do this within three months of the proposal being presented to the Council. In this case, the deadline will expire on 27 August so I am extremely grateful that time has been made available to debate this opt-in report at short notice and before the expiry of that three-month period.
The background to this debate is the global migration crisis and, specifically, its tragic consequences in the Mediterranean. In a single incident off the coast of Libya in April, more than 800 people lost their lives. Italy and Greece are on the front line. The proposal that is the subject of this debate focuses narrowly on the EU’s attempt to alleviate the burden that has fallen on Italy and Greece in responding to this humanitarian crisis. The fact is that Italy and Greece are unable to cope with looking after migrants and processing their claims for international protection status. Conditions have become so poor in Greece that the European Court of Justice has held that states that return asylum seekers to Greece are in breach of the prohibition against torture and inhuman or degrading treatment.
In response, the emergency European Council summit in April agreed to consider organising emergency relocation between all member states on a voluntary basis. What this meant in practice was that the member states agreed voluntarily to assist Greece and Italy by taking in or relocating some of the migrants already based in those countries. However, in May, the EU Commission proposed a Council decision that, if adopted, would create a temporary scheme to relocate 40,000 migrants entering the EU via Italy and Greece to other member states, with the precise numbers to be determined in accordance with a mandatory quota system. Since that point, the Commission and the European Council seem to have been in disagreement. What happened next was that the European Council agreed at its meeting in June that the Council of Ministers should adopt a Council decision providing for,
“the temporary and exceptional relocation over two years from the frontline Member States Italy and Greece to other Member States of 40,000 persons in clear need of international protection, in which all Member States will participate … all members will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situation of Member States”.
This meant that the European Council accepted the principle that 40,000 migrants should be relocated from Greece and Italy, and the reference to agreement on distribution by consensus, rather than by qualified majority voting, underlined that the European Council was rejecting the mandatory nature of the scheme proposed by the Commission and reverting to a voluntary political agreement.
Earlier this week, on 20 July, after the report was published, the Justice and Home Affairs Council agreed to a voluntary scheme that would relocate 32,256 migrants—almost 8,000 short of the target agreed by the European Council. Germany has agreed to take 10,000; Luxembourg, with a population of a little over half a million, is taking 320; even Malta, which is already overburdened with migrants entering Europe by sea, is taking 60. The UK is taking none—not even one.
Baroness Prashar
Will the noble Lord forgive me if I do not give way, because I would like to go through my speech first? I can answer questions later.
Lord Higgins
Could the noble Baroness just clarify one point? I should explain that I have taken part in all the other debates on this issue. She refers to migrants. Is that the same as asylum seekers?
Lord Higgins
The noble Baroness referred just now to migrants. Is that the same as asylum seekers?
Baroness Prashar
Not exclusively. The point is that the definition of a migrant is rather fluid, because people who are migrants may become asylum seekers or refugees.
As I said, the UK has taken none—not even one. This week’s political agreement appears to have sidelined further involvement by the Commission, so the status of the Commission’s proposal is uncertain. It is not clear whether it will be withdrawn or amended. Indeed, the information published by the Council about Monday’s meeting has muddied the waters, leaving it unclear on what legal basis the Council’s decisions are being taken forward. That is why the Motion before the House is conditional on the Commission amending or replacing its proposal in such a way as to reflect the conclusions of the European Council.
This is a convoluted story; it was not the way to handle an issue of such gravity and importance. We need to remind ourselves of the underlying reality of this crisis. First, the proposed scheme would not relocate any migrants who have entered Italy or Greece. Only those who are from countries where over 75% of emigrants are successful in claiming asylum status are eligible. At the moment, only three countries meet this condition: they are the conflict-ridden states of Iraq, Eritrea and Syria. Those who would be helped by the scheme are overwhelmingly refugees and not economic migrants.
Secondly, the scheme has repeatedly been conflated with the concurrent proposal to resettle 20,000 refugees in the EU directly from north Africa, the Middle East, the Horn of Africa and other priority areas. The UK has agreed, in accordance with long-standing international obligations, to take in just more than 2,000 refugees under the resettlement scheme—but this has no bearing on the relocation scheme, which applies only to migrants who are already in the EU.
Why is the UK refusing to help? The Government argue that the relocation scheme, which is helping those migrants who have already reached the EU, will act as a pull factor and encourage more people to risk their lives. This claim is wholly unsubstantiated, and the Minister, James Brokenshire, was unable to offer any evidence to support his claims when he appeared before the committee. These refugees are fleeing for their lives. The notion that the relocation scheme will encourage more to flee is therefore totally unconvincing.
The Government also cite their wider objectives, such as stopping migration across the Mediterranean and reducing the flow of migrants in countries of origin. These are of course laudable medium and long-term objectives—my sub-committee has just launched an inquiry into the EU’s agenda on migration, which will address these issues in more detail—but they have no bearing on this proposal, which has a specific, limited goal to deal with the current humanitarian crisis.
If the EU fails to relocate refugees, they will be forced to remain in countries which have increasingly poor reception conditions and which, particularly in the case of Greece, are facing economic crises that seriously reduce their capacity to accept additional migration. This is a humanitarian crisis which requires genuinely collective EU action. Moreover, this scheme is about the fundamental principle of solidarity and burden-sharing between member states. As an EU member state, we have a duty to show solidarity and help deal with the crisis. The political and international implications of failing to opt in would also be grave. This humanitarian crisis is happening within the EU’s own borders, and the EU’s failure to deal with it adequately is undermining its international credibility. Effective action is needed and this cannot happen unless all member states, including the UK, take their share of the burden.
After the June Council, the Prime Minister made it clear that the Government do not wish to take part in the relocation scheme. However, the Government’s Explanatory Memorandum leaves open the possibility that the UK may help if a voluntary scheme is introduced. This now appears to have happened at this week’s Justice and Home Affairs Council. Moreover, the distribution of relocated migrants is well below the target of 40,000, so it would seem that there is still scope for the UK to participate in this scheme. The precise number of migrants that the UK would take would of course be up to the Government.
Before I finish, I have three questions for the Minister, of which I have given his office advance notice. First, further to the Council’s resolution on 20 July, will there be EU legislation to establish the relocation scheme? Secondly, what form will such legislation take and on what legal basis will it be adopted? Thirdly, what relationship will this legislation have to the Commission’s original proposals? These are technical questions but they are important.
Technicalities aside, the issue we are discussing today is fundamentally a question of the UK’s responsibility as a member of the EU. We believe that duties of solidarity with our allies, and compassion for those who have fled civil war, mean that the UK must opt in. Moreover, we believe that it is in the UK’s interest to take part in the proposed scheme. Now, above all, we should show we are fully engaged in supporting our partners. I urge the Government to reconsider their position and opt in. I beg to move.
Lord Hodgson of Astley Abbotts
My Lords, I did not expect to get through this speech without the noble Lord, Lord Hannay, wishing to draw attention to the advantages of the European Union. The fact is that those countries are immeasurably less densely populated than the United Kingdom. France, at 111 people per square kilometre, has 25% of our population density, and we have to bear that in mind. Our settled population—and when I say “settled population”, I mean people of whatever race, colour or creed—has its own position and we are in danger of—
Baroness Prashar
I draw the noble Lord’s attention to Malta, which, as he knows, is under enormous pressure from migrants arriving by sea. Malta has agreed to take 360.
Lord Bates
I am happy to write with the details of the specific criteria. I would stress that, whereas we agreed through the UNHCR a set of terms for the scheme that we would operate and the ways in which they refer to us, that is in addition to the far larger number of 4,200 asylum seekers from Syria to whom we have granted leave to remain in this country.
With those remarks, I thank the committee for its work and I particularly thank the noble Baroness for the way in which she has presented it. I hope that I might have offered some comfort that we have taken seriously the points which she raised and I hope that she may feel able to withdraw her Motion.
Baroness Prashar
My Lords, this has been a very moving, powerful and thoughtful debate and I thank all noble Lords for their participation. Most of those who spoke in the debate pointed to this as a specific issue about a humanitarian crisis. The Motion is about Britain participating in the scheme for relocation. It is about solidarity and our responsibility—including, if I may say so, our moral responsibility—in this humanitarian crisis. I thank the Minister for his answers to my specific questions but I am disappointed because, although it is laudable that the Government are taking action on a whole range of issues, I do not feel I have a satisfactory answer to the specific issue that this report raises which is about opting in to this voluntary scheme in response to a specific crisis. This is quite necessary in our view because it is about burden sharing and solidarity with Europe. With that said, I beg to move.
CEPOL Regulation: United Kingdom Opt-in
Baroness Prashar Excerpts(9 years, 6 months ago)
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Baroness Prashar
That this House agrees the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, to take part in the adoption and application of the proposal for a Regulation of the European Parliament and of the Council establishing a European Union agency for law enforcement training (CEPOL), repealing and replacing the Council Decision 2005/681/JHA (document 12013/14) (3rd Report, HL Paper 52).
Baroness Prashar (CB)
My Lords, I move the Motion standing in my name on the Order Paper as chairman of the European Union Committee sub-committee on Home Affairs, Health and Education which prepared the report on the UK opt-in to the draft CEPOL regulation to which this Motion relates.
As your Lordships know, when the House considers reports of the European Union Committee, it is normally on a Motion that the House takes note of the report. In this case, the Motion invites the House to agree to the committee’s recommendation. The reason is that this report deals with a draft measure falling within the area of justice and home affairs which will apply to the United Kingdom only if the Government exercise their right under a protocol to the EU treaties to participate in its negotiation, adoption and implementation: in other words, to opt in to it. They have to do this within three months of the proposal being presented to the Council, which means before 24 November. The committee believes that the Government should opt in now, and the Motion invites the House to endorse that view. The Government have undertaken that time will be found to debate opt-in reports well before the expiry of the three-month period. I am therefore grateful that they have made time available for this report early enough for them to be able to take the views of the House into account.
CEPOL is the European police college. It brings together senior police officers from across the EU and aims to encourage cross-border co-operation in the fight against crime and the maintenance of public security and law and order through training and exchange programmes and the sharing of research and best practice. Until September this year, it was located at Bramshill in Hampshire; in September, it moved to Budapest.
Despite its important role, CEPOL is less well known than Europol, which is a much larger EU agency for co-operation in law enforcement and whose aim is to achieve a more secure Europe by supporting member states in their fight against serious organised crime and terrorism. CEPOL and Europol are separate bodies set up under different Council decisions. In March 2013, the Commission put forward a new regulation for Europol, one of whose objects was to merge CEPOL with Europol. That regulation, too, was subject to the United Kingdom opt-in. Some of your Lordships were present on 1 July 2013 when the committee’s report on that regulation was debated. Those who spoke shared the committee’s doubts about the desirability of such a merger. The Government too had concerns, and so did the director of Europol. The director of CEPOL also opposed the merger, and it was rejected by the European Parliament. Finally, in March this year, the Council decided against the merger. The provision relating to CEPOL was therefore deleted from the Europol regulation.
The Commission has now brought forward a separate regulation dealing only with CEPOL, and it is this separate regulation which we are considering tonight. It is the Government’s practice in their Explanatory Memoranda dealing with measures subject to the UK opt-in to give no indication of whether they are inclined to opt in. Instead, they say simply that they consider such measures on a case-by-case basis. That is what they said last year in relation to Europol. Two months after the debate they said that they would not opt in to the Europol regulation—and by then it was, in any case, too late for them to do so.
In the case of CEPOL regulation we have at present no indication from the Government of what their intentions are, unless the Minister can tell us when he responds. There are, in the Committee’s view, very good reasons why the Government should opt in now to the CEPOL regulation. Cross-border co-operation in the fight against crime and the maintenance of public security and law and order have never been more important. Senior UK officers have much to learn from their colleagues in other member states—and perhaps even more to contribute.
The Government have concerns about the Commission’s proposals to widen CEPOL’s remit: these are listed in paragraphs 16 to 18 of the report. We have some sympathy with some of these concerns, but the committee is of the view that the Government should opt in now, as this will give the message that the Government intend to continue to support and be part of CEPOL. It will also give the Government a formal place at the negotiating table when attempts are made to amend the Commission’s draft. In other words, the Government would be better placed to make their views and concerns known in the course of negotiations if they have opted in.
Opting in to CEPOL regulation is important, but opting in to the Europol regulation is critical. Europol is a vital weapon for co-ordinating the European fight against serious organised crime, drug trafficking, money laundering, cybercrime and terrorism. Yet, as I said, the Government declined to opt in to the Europol regulation during the three-month window, preferring to say that they would wait until after the regulation was adopted and consider again whether to opt in. In the case of both CEPOL and Europol, if the Government do not ultimately opt in to the relevant regulations, the consequences will be serious. We explain the reasons in paragraphs 20 to 23 of our report and these reasons have been accepted by the Government.
Not opting in would thus initially result in the UK remaining bound by the decision giving CEPOL its existing powers while other member states will be bound by a regulation with a different constitution and wider powers. This would mean that the other member states would have the power to decide that the measures setting up these agencies will cease to apply to this country. There is every likelihood that they will do so. The United Kingdom would, in effect, be expelled from both agencies.
Two years ago, Rob Wainwright, the highly regarded British director of Europol, told my committee that if the UK stopped participating in Europol:
“It would increase the risk of serious crimes, therefore, going undetected or not prevented in the UK”,
and that, as the UK is a common destination for drug and people trafficking,
“any diminution of the UK’s capability to deal with those problems would clearly increase public safety risk”.
The consequences if the UK were to leave Europol would, in his words, be “pretty disastrous”.
I seek three assurances from the Minister. First, that the Government will opt in to the CEPOL regulation; secondly, that they will do so within the three-month period, before 24 November; and, thirdly, that they will opt in to the Europol regulation as soon as possible after it is adopted, and, in any case, before it comes into force.
I also take this opportunity to put another matter before your Lordships. Four weeks from today is 1 December, the fifth anniversary of the entry into force of the Lisbon treaty, and the day on which the Government’s decision to opt out of all justice and home affairs measures takes effect. It is also the day on which the Government would like to opt back in to 35 of those measures. This, I need hardly remind your Lordships, is a matter of great importance, and the Government have undertaken that this House will debate it well in advance. On 27 September the Commission published the final list of those 35 measures, annexed to a draft decision which will enter into force on 30 November and extend the application of those measures by a week.
We should have received, by 16 October at the latest, the Government’s memorandum explaining the meaning and purpose of this proposal and their attitude to it. Had we done so, we would have considered it at our meeting on 22 October. We were unable to look at it then, or on 29 October. We received the memorandum less than three hours ago, so there is little prospect of our scrutinising the draft decision on 5 November, which is our last meeting before the Recess. We are frequently told how seriously Ministers take their scrutiny obligations. Therefore, I should be glad to have the Minister’s explanation of why, in a matter of such great importance and urgency, the Government have, despite repeated reminders, failed in their duty to the committee and to this House. I beg to move.
Lord Bates
The decisions that are made on these matters are ordinarily communicated by Written Ministerial Statement. If, through the usual channels, the business managers and the committee, there is scope for something more than that, of course we stand willing to comply with what the House requires and to show it due respect. But that is the normal course through which information is communicated on decisions of this nature.
However, if the Commission considers that UK non-participation makes CEPOL inoperable, it could seek to have us ejected from CEPOL, from the 2005 decision. The provisions in Article 4a(2) of the protocol clearly set this out. Clearly, this depends on a number of questions that are currently hypothetical: whether we opt in before 24 November; whether, if we do not opt in then, we do so post-adoption; and whether, if we do not, the Commission tries to trigger the ejection mechanism. But if things got that far, it would be important to note that the protocol sets what seems to be a very high threshold for ejection. It requires the measure to be “inoperable”, not merely inconvenient or difficult to operate, and it must be inoperable for the other member states, not just for the UK. These are tough tests for the Commission to meet. However, that is an argument to be had if and when we get to that stage. We are a long way from there at the moment.
With reference to the draft Europol regulation, as the committee is aware, we decided not to opt in at the outset, but committed to opting in post-adoption if certain conditions are met. I must stress that, at this stage, no decision to opt in has been made and no such decision will be made until negotiations are complete and the regulation is adopted. At that point, the full process for considering a post-adoption opt-in will be followed, which, as the committee is aware, can take several months. However, as mentioned above, and without pre-judging the final outcome, I can say that I am pleased with the current progress of the negotiations.
I realise that time is running out. I will deal with some of the matters raised and if I cannot deal with them all, I will of course respond in writing to the noble Baroness in the first instance and copy that letter to all other noble Lords who have contributed to the debate. Some specific points were raised by the noble Lord, Lord Sharkey, and my noble friend Lord Patten. My noble friend brings immense expertise to this having, in another place and in another guise, been a particularly fine Policing Minister in the Home Office. The particular issue of concern is the proposal for CEPOL to assess the impact of existing law enforcement training policies and initiatives and to promote the mutual recognition of law enforcement training in member states and related existing European quality standards.
We have a particular problem with this because, from the time between Bramshill closing and the CEPOL negotiations, we now have an excellent College of Policing, which is doing tremendous work among police forces in this country. To keep it in context—noble Lords asked about this—the attendance at CEPOL courses was typically around 100 officers per year at Bramshill. That has now gone. We are talking about the College of Policing, but also recognise that in Bramshill we have an asset, and there were associated running costs. That is going to front-line law enforcement in this country.
Other issues that were raised related to the timeliness of communications. The noble Baroness, Lady Prashar, and the noble Lord, Lord Judd, raised this in very serious terms. I will take it away and reflect on it. It is not always within our hands as to when we get documents and how to pass them on. However, I should like to sit down with the committee to understand how we can improve our performance, between officials at the Home Office, Ministers, and the committees, to ensure that committees are able to do their job of scrutiny in a proper way. I accept the reprimand, apologise and promise to look at that more closely.
Some Members, including the noble Lord, Lord Judd, referred to the Lisbon justice and home affairs opt-out. As I have said, that is an opt-out of the previous Government’s making. We are simply exercising our right to do it. It does not seem necessarily a bad thing that if you have a piece of regulation before you and you are not entirely happy with it, then you can undertake the genuine, sincere and vigorous negotiations happening at the present, and reserve judgment on whether you choose to opt into the final draft until you have seen the final text.
The noble Lord, Lord Patten, also referred to the fact that we need to work much better at cross-border co-operation in policing and serious crime. We recognise that that is a very important area. That is why we have taken the approach that we have towards Europol and the arrest warrant. We recognise, as the noble Baroness, Lady Smith, said in her remarks, that ensuring the safety and security of the people in this country is the first priority of every Government. We should do that, but we can do so not necessarily by signing up to everything, but by being discerning because we have been given the opportunity to do that.
I covered interdependence. We accept that we need to co-operate and that is an ongoing thing. I very much accept that we are in this together and that, as the noble Lord, Lord Judd, said, we need to co-operate. However, we can have meaningful input into the negotiations ongoing in Brussels with our position as it is. I do not think it is an ideological position. It is one that looks at different issues and treats them in different ways, raising legitimate concerns about CEPOL while recognising its very good work, taking a slightly different approach with Europol, and a different approach to the European arrest warrant. That is a balanced and broad approach. However, I assure your Lordships that we will take into account and re-read all the contributions made in the debate. Again, I thank the committee for the work it has prepared, which we can draw upon.
Baroness Prashar
My Lords, I thank all Members of the House for their contribution to the debate and for their positive comments about the report and the work of the EU Select Committee, for which I am very grateful. I have listened very carefully to the Minister and welcome the fact that he is willing to discuss the timetable to ensure that there is better engagement with the committees on timing. I also listened carefully to what the Minister said about the pros and cons of opting in now or later and the process. I must say that I find that unsatisfactory. I am disappointed that we have not had a clear answer on the Government’s intention. I urge the Minister to think about that, because the committee weighed the pros and cons and recommended that it would be wiser to opt into the regulation now rather than later.
Having said that, what is clear from the tone of the debate is that there is disappointment about the process, but we also have to take account of the context within which opt-ins are being discussed. The noble Lord, Lord Judd, talked about the culture and the importance of working together. It is important also to register the broader point within which the debate about opt-ins is taking place.
I thank the Minister for his response and I beg to move.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
Is the noble Baroness withdrawing the Motion?
Justice and Home Affairs: United Kingdom Opt-Outs
Baroness Prashar Excerpts(9 years, 9 months ago)
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Baroness Prashar (CB)
My Lords, I, too, will concentrate on process, which I am sure will be dealt with by the former chair of my sub-committee, the noble Lord, Lord Hannay. The noble Lord, Lord Boswell, also commented on that.
The two sub-committees of the EU Select Committee recommended that the Government should provide Parliament with regular reports on the progress of the negotiations and show flexibility regarding any issues of coherence raised by the Commission. It is therefore welcome that the Government have been flexible. It is also welcome that we have this debate to consider opt-ins and opt-outs. I am very grateful to the Minister for updating us on this.
As we heard, on 3 July, the Government laid before Parliament Command Paper 8897. However, that document is very inaccessible. For example, the impact statements are unnumbered and unindexed. It is disappointing that such an inaccessible paper was laid on such a complex issue. It does not make the sub-committees’ consideration of these issues any easier.
Furthermore, in a debate on 8 May in this House, the noble Lord, Lord Hannay, who was then the chairman of Sub-Committee F, argued that there should be impact assessments of measures the Government did not intend to opt back in to as this, too, would have an impact on the UK. As he said:
“That impact could be neutral, positive or negative, but it is an impact”.—[Official Report, 8/5/14; col. 1622.]
It is disappointing that we do not have those impact assessments.
As we heard from the Minister, the negotiations on the overall package have not been concluded but agreement has been reached in principle. When the package was discussed at the General Affairs Council on 24 June, some member states expressed technical reservations, as we heard. It is important to know whether these technical reservations will result in any changes to the list, or in changes to the classification of measures as Schengen or non-Schengen.
Furthermore, there is no reference to the data protection framework decision, which has been reclassified by the Commission as a non-Schengen measure. Do the Government agree with this? I am grateful to the Minister for explaining about the measures that have been “Lisbonised” and what is in and what is out. Nevertheless, it is misleading to refer to them as the 35 measures. As we need to focus on the measures that the Government will be opting back in to, it is important to know whether the Government’s list is the same as that of the Commission. It would be helpful to have an explanation of the reasons for the changes, and whether these were demanded by the Commission or by other member states. How were these changes agreed and on what basis?
The two sub-committees concluded in their report last year that the Government should seek to rejoin the 35 measures already identified but should also seek to rejoin an additional set of measures such as: implementing measures related to Europol’s continued operation; the framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law; the European Judicial Network; the European probation order and the Convention on Driving Disqualifications. I am pleased that the Government have decided to opt in to the European Judicial Network and the measures relating to Europol. All this is welcome. However, like the previous speaker, I would like to know what the timetable is with regard to the European probation order. I was pleased to hear that the Minister sees the potential of that measure but it would be useful to be told what the plan is for the future.
I very much hope that the Government will continue to pay heed to the sub-committees’ recommendation that the Government provide good quality, accessible and timely information to inform future consideration of these matters.
Student Visas
Baroness Prashar Excerpts(9 years, 10 months ago)
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Lord Taylor of Holbeach
I agree with my noble friend. That is why we are particularly concerned that the institutions themselves failed to take proper regard of the fact that some of their students were not capable of speaking English properly and had insufficient command of the language, and we know that in some cases the students concerned were not really studying at all but were out there working. The HMRC figures have clearly demonstrated this, and that is why we are taking this action.
Baroness Prashar (CB)
My Lords, what positive steps are being taken to ensure that innocent students at these institutions do not suffer unnecessary hardship and are not left stranded? If that happens, it will send a negative message about how much we welcome students. It is important that steps are taken to ensure that innocent students do not suffer.
Lord Taylor of Holbeach
The noble Baroness will know that previously we had to suspend the sponsorship status of London Met, and we worked closely with the university. We are doing the same now because it is not in our interests to upset the studies of those who are here and clearly want to continue them. We want those students to feel that they can carry on. That is our objective and we will be doing that. Meanwhile, we have to say to the colleges and universities I have mentioned that it is in their hands—it is their responsibility to take the necessary measures to make sure that they run an orderly establishment.
Immigration Bill
Baroness Prashar Excerpts(10 years, 2 months ago)
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Baroness Prashar (CB)
My Lords, listening to this debate this afternoon and this evening, I have had a real sense of déjà vu, because the question of international students has been raised in the last two years, and the call for rational debate on immigration was first made by the Runnymede Trust when I was a director in 1982. But it seems that we never make much progress. At this stage I will inevitably be repeating what has already been said, for which I make no apology, because the strength of feeling is so strong it is worth repeating some of the points that have already been made.
This Bill seeks to create a hostile environment for irregular migrants. In so doing, I am afraid it will create a hostile environment for migrants seeking to enter or remain in the UK through legal channels. It will have a negative impact on international students, on public health generally, as we have heard, and put landlords in an invidious position. I fear the hostile environment it seeks to create for irregular migrants will be hostile to all of us. Proposals such as: administrative removal; extending immigration officers’ powers to use reasonable force by allowing them to do so in the exercise of all powers under any Immigration Act; indefinite retention of biometric information without justification and sufficient safeguards; removal of rights of appeal on any grounds other than asylum and human rights; denying any independent review to anyone else who makes an immigration application; and the introduction of landlord checks and new health charges for temporary migrants, raise not only practical questions but also questions of liberty and justice, principles on which we pride ourselves.
It is regrettable that in the other place a great deal of attention was paid to migration from Europe, but the most worrying aspects of the Bill were not properly scrutinised. It is very much to be hoped that this House will give sufficient time to scrutinise the Bill and its impact on migrants and society in general. I endorse the comments made by the noble Lord, Lord Judd, and the noble Baroness, Lady Hamwee, about the question of leadership, because it is leadership that is required if we want a proper, rational and calm debate. I hope that this House will have a cool look at some of these provisions to make sure that they do not erode liberties and justice, and do not have a negative practical impact on some of the groups mentioned.
In my capacity as the president of UK Council for International Student Affairs, I highlight the impact that proposals such as the abolition of appeal rights and their replacement with a system of administrative reviews; the requirement for all landlords to undertake immigration checks; and the introduction of a health levy are likely to have on international students. I shall concentrate on some of the practical aspects.
As we know, international students and their dependants often need to appeal against decisions by the Home Office to refuse applications for visa extensions when completing their degrees or moving to higher-level courses, for a wide variety of reasons. It is now officially accepted that nearly 50% of appeals are upheld because the decisions were unsound in the first place due to technical errors, which does not inspire much confidence that the administrative reviews will work. The Government’s claim that administrative reviews have been successfully introduced for entry clearance decisions overseas does not hold. They point to the small number of reviews that result in decisions being overturned, but evidence from members of UKCISA tells a different story. Given the time required for these reviews and when the students have so little time, very few risk going through the process, preferring to submit a repeat application at an additional cost. Furthermore, attempts to limit Article 8 will have an adverse impact on students as they will not be able to rely on this in future applications, or challenges to refusals or removal action.
We know of no evidence of tier 4 students abusing the appeals system, but there is extensive evidence of errors by the Home Office staff. The danger is that similar officials would conduct administrative reviews and could come to similarly erroneous decisions. Removal of appeal rights is not only unjust but ineffective; natural justice demands that that this should be preserved for all, and not just for students.
The proposal for immigration checks by landlords is fundamentally flawed. Let us look at the facts. There is no evidence that international students present any difficulty in this area. International tier 4 students have their immigration status checked by the sponsoring educational institution as part of their compliance procedures, so why duplicate? We have seen that even the now former Minister for Immigration had difficulty verifying the immigration status of his cleaner. Even employers with professional HR departments have very considerable difficulty assessing immigration status and the vast variety of schemes and immigration stamps that exist; it is very easy to make mistakes. It is, therefore, difficult to see how landlords will be able to make appropriate judgments. The majority will play safe and consequently those of different colour, accent or origin will suffer. Where is the justice in that?
Then there are concerns about the availability of documents when visa extensions are being processed for those continuing to higher education courses, just when the same paperwork may be required for new accommodation. The requirement essentially to have a visa before renting accommodation, a process which is often done online, will make it difficult if not impossible for international students to arrange accommodation securely in advance of arrival. I know that there is now an exemption in the Bill for university-managed accommodation, but this does not address the potential problems as the vast majority of students are in privately rented accommodation. This proposal should be withdrawn altogether or at least all students should be exempted.
I turn to the health service levy. The principle of introducing any sort of health service charge for international students is unnecessary and unjustified. International students already pay the full cost of their education and all their living expenses, amounting to total earnings of £13.6 billion annually for the economy. They support local economies, paying VAT and tax on part-time earnings. They are, therefore, making a major financial contribution to the UK. There is no evidence to show extensive abuse of the NHS or health tourism.
As the levy, if imposed, will be paid with the visa application, it will be seen as an increase in the visa fee—yet another disincentive. The Government argue that other countries do this, but this does not take into account the fact that other countries have taken positive steps to attract international students. In our case, it is the cumulative effect of our policy towards international students—biometrics, entry clearance, institutional immigration checks and police registration—that acts as a major disincentive.
Consequences are evident. The Russell Group universities say that in 2010-11 new intakes of postgraduate students from India at Russell Group universities dropped by 21%, with a further 18% drop anticipated in 2012-13. They say that even the growth rate in new students from China has now started to taper off. By contrast, Indian postgraduate student numbers to the US increased by 40% in 2013. Visas granted to Indian students across all levels in Australia rose by 22% in the year following the introduction of a more open immigration policy. Visas granted to Indian students in Canada rose by 8%.
We all know that after many years of growth, 2012-13 saw the first reduction since records began in the number of non-EU higher education students and, for the second year running, a reduction of 25% in students from India and 19% for students from Pakistan. In April 2012, India’s Commerce and Industry Minister, the honourable Anand Sharma, reminded UK Ministers that Indian IT companies were considering relocating from the UK as a result of difficulties in the UK immigration system. He also emphasised wider issues such as visas for business trips and restrictions affecting Indian students hoping to study in the UK. That was two years ago.
The Government, in their report, International Education Strategy—Global Growth and Prosperity, said that their approach was a warm welcome for international students, and explained that there was no cap on the number of international students who could come to the UK, and that they would support students when things go wrong in their home. However, the proposals in the Bill run contrary to the intentions of this strategy. Because students are part of the overall government target to reduce migration, they are getting caught in these measures.
On a number of occasions, as my noble friend Lord Hannay said, EU Sub-Committee F, of which I am a member, has said that international students should be removed from the public policy implications of the Government’s policy of reducing net migration. We have argued that nothing short of this will enable the UK to remain competitive in attracting international students. The IPPR report published in December 2013 argued that the Home Office’s net migration target had created a perverse incentive for the Government to reduce the number of international students officially counted as migrants in order to achieve an overall reduction in migrant numbers. They said that this was harming the UK economy. This is an opportunity to change the policy, remove international students from this target and stop them getting caught in these proposals. I very much hope that the Government will pay heed to these issues and that I will not have a sense of déjà vu 10 years on.
EU Police and Criminal Justice Measures: EUC Reports
Baroness Prashar Excerpts(10 years, 3 months ago)
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Baroness Prashar (CB)
My Lords, I am a member of EU Sub-Committee F, which is chaired by the noble Lord, Lord Hannay of Chiswick, and I thank him for introducing this debate and for his masterly, clear and comprehensive exposition of this complex and difficult subject and the issues at stake. I agree with what the noble Lord said and the questions he posed the Minister.
As we heard, the scrutiny of the Government’s opt-out decision was conducted jointly by Sub-Committees E and F, and I express my thanks to the noble Lords, Lord Hannay and Lord Bowness, and the noble Baroness, Lady Corston, for their skilful chairing and for enabling the EU Committee to publish the two reports, which the Government have described as,
“an extremely thorough analysis of a complex issue”.
It is, therefore, extremely disappointing that we are debating these two reports so late in the process, when substantive decisions have more or less been taken. Justifiable criticisms have been made by the noble Lord, Lord Hannay, and others about the way the Government have engaged with Parliament, and I very much hope that for the rest of the process there will be timely, proper and meaningful engagement with Parliament and the devolved Administrations.
During the course of our initial inquiry, it was notable that the extensive evidence we took was so overwhelmingly in one direction; that is, opposed to opt-out. The most compelling evidence came from practitioners. As something of a newcomer to the Select Committee, I began to wonder whether the whole thing was necessary. I knew the Government had the right to look at it, but I began to wonder whether, before making the announcement, they should have consulted and saved themselves a great deal of unnecessary work and the unnecessary anxiety that has been caused.
The most compelling evidence came from practitioners. At a seminar organised by the EU Select Committee, Helen Malcolm QC, vice-chair of the Bar Council’s EU law committee and chair of its criminal law sub-committee, said that, as a lawyer and not a politician, she considered it remarkable that every witness with experience in the criminal justice field had considered some of the measures to be vital and that it was equally remarkable that no measure had been identified by anyone as being bad for the UK.
We now have the Government’s response to the two reports. They agree with the conclusion of our first report that cross-border co-operation between the UK and other member states on police and criminal justice matters is crucial. Furthermore, the Command Paper published in July 2013 assessed none of the measures as being harmful to UK interests or having any negative impact on fundamental rights.
The Lord Chancellor and the Home Secretary say that the decision to rejoin 35 measures is based on what law enforcement agencies tell them works, balanced against the Government’s principled concerns about excessive European influence in these areas. A close examination of the reasons why the Government do not intend to opt into some measures, however, shows that concerns about excessive European influence are a dominant factor, rather than the views of the practitioners and the importance of the cross-border co-operation. The grounds on which the Government have made the selection of measures not to join are not necessarily based on evidence or persuasively argued. In some instances, their approach is inconsistent. In the words of the Lord Chancellor and Secretary of State for Justice, they are “philosophical”, and not based on evidence one way or the other.
This inconsistent approach is clear in the case of the Court of Justice of the European Union. Despite expressing concerns about the potentially negative impact of extending the jurisdiction of the CJEU over the measures, the Government have opted into most post-Lisbon police and criminal justice measures, thus bringing with them the jurisdiction of the CJEU. During our initial inquiry, we considered this matter in some depth. We concluded that the CJEU, which has jurisdiction only over matters of EU law, had an important role to play, alongside domestic courts, in safeguarding fundamental rights and upholding the rule of law. CJEU jurisdiction was welcomed by many witnesses as being helpful in ensuring the consistent application and interpretation of police and criminal justice measures, and this is accepted by the Government.
The Government cite the prospect of unexpected judgments, concerns about the drafting of measures, and minimising the possibility of an adverse judgment as reasons for not accepting the full jurisdiction. Any court is liable to make unexpected judgments. Citing poor drafting of measures as a reason for not joining is not convincing, given the rigorous process of negotiation to which these measures were subject and the fact that they were supported by the Government at the time of their adoption.
With regard to minimum standards in criminal law matters, it appears that the Government regard participation in such measures as unnecessary, in the sense that the UK could continue to act in such a way as to fulfil the requirements of each measure even if it did not formally participate in it. This argument does not take into account the fact that any future Government could repeal decisions that made the UK compliant with the current minimum standards. The Lord Chancellor sees these measures as “the Europeanisation of” legal “decision-making” and underplays their practical significance.
For example, Europol said that the minimum-standard measures act to level the playing field for practitioners and eliminate arbitrary differences between jurisdictions. Europol also said that UK’s withdrawal from these measures would remove legal certainty and create a perception among law enforcement practitioners and criminals that the UK is outside the zone of co-operation—co-operation which the Government see as crucial.
In the long run, opting out of these measures would also affect the UK’s ability to influence and participate in law enforcement co-operation. It would diminish the UK’s position and reputation, particularly in areas where it has been a leader. One such measure, which has already been mentioned, is the framework decision on xenophobia and racism. The UK is a world leader in this area and deserves a great deal of credit for its commitment to, and strategy for, tackling racism and xenophobia. We have set a standard, and withdrawal from these measures will send a negative signal, not least to the minority communities in this country, and will inhibit our ability to influence other member states. I therefore urge the Government to review their decision not to join this measure.
On the European Judicial Network, the Government are again at odds with the view of practitioners. The Government say that the European Judicial Network adds little or no value and state that while they believe that the ideas underpinning the network have merit, they do not consider that the network is a measure that underpins practical co-operation. Practitioners argue the contrary. The Law Society of England and Wales and the Law Society of Scotland say that the Government should seek to join this measure as it could help to address the lack of training and awareness of legal practitioners regarding police and criminal justice measures. This view was supported by the Bar Council and the Lord Advocate.
We were told that the network provides Scottish prosecutors with a rich source of advice on national law in other member states and is a valuable tool in the armoury of prosecutors. It is the practical co-operation that is valued by practitioners and the Government should pay heed to that. The Government’s reasons for not joining the European probation order also deserve comment. They say they support the principle behind this measure but do not consider that its benefits outweigh its risks. They say that no evidence has been put forward that outweighs their concerns. The Government’s concern that offenders might not be properly supervised by other countries and that there might be complications should their possible return to the UK arise, can be resolved, as we stated in our report, at European level. Furthermore, the Government have not dealt with the point put forward by the Law Society of England and Wales and the Law Society of Scotland that joining this measure could prove a useful alternative to a European arrest warrant being issued for a sentence imposed in default, thus reducing the potential number of European arrest warrants issued.
In the evidence that we heard, we were also told that this measure would be helpful to offender management and public safety, between Northern Ireland and the Republic of Ireland in particular, and that because there was no meaningful consultation, the unique relationship between the two states has been ignored. This deserves further consideration. Finally, I hope that the Government will take note of the points made in our report about coherence, transitional arrangements, negotiating process and future engagement with Parliament, as well as the comments made by the noble Baroness, Lady Corston, and the noble Lord, Lord Sharkey, about impact statements.
Global Migration and Mobility (EUC Report)
Baroness Prashar Excerpts(10 years, 11 months ago)
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Baroness Prashar
My Lords, I thank the noble Lord, Lord Hannay, for introducing this debate so comprehensively. It is an absolute privilege to work on the sub-committee under his leadership, along with other colleagues who I worked with on this report. This is a very important report because it is measured and has come at a time when there is a great need for a rational debate on issues of migration—a debate which is well informed and well considered. In that sense, I hope that it will make a constructive contribution to the debate on immigration.
The difficulty of coming at this stage of the speakers list is that most of the points I wanted to make have been made. As I listened to the noble Lord, Lord MacGregor, I thought, “Well, my speech is redundant”. Then I thought that there was some merit in the fact that so many of the speakers had spoken about international students and had made such strong points that it was worth repeating some of those points.
My knowledge of what is happening on the ground comes from my capacity as president of UKCISA, the United Kingdom Council for International Student Affairs, and as deputy chair of the British Council, both organisations being involved with international students.
As the Minister is aware, the question of international students has received considerable attention in both Houses and of course elsewhere. Indeed, following the previous debate in January he wrote to us and confirmed the Government’s commitment to the sustainable growth of the higher education sector. In the intervening months, however, as we have heard, not much has changed. The recommendation in the Select Committee’s report is worth dwelling on. It says that the committee recommends,
“the removal of international students from the public policy implications of the Government’s policy of reducing net migration”.
The report also says that if the Government genuinely favour an increase in bona fide students from outside the EU, they should make this clearer and ensure that all policy instruments support that objective. Unfortunately, however, not all policy instruments do so. Despite the pronouncements that the UK continues to welcome well qualified students and that there is no cap on their numbers, processes and procedures remain complex. The absence of post-study work entitlements for the vast majority puts the UK at a considerable disadvantage. While we have seen some changes, concerns remain.
One concern that has not yet been mentioned is that since April there is now an additional imposition of 100,000 video-conference interviews for students as part of the visa process, in which carefully developed, robust and objective criteria could be overruled on the basis of a subjective judgment. This is another disincentive.
We have heard a great deal about the extended and far more confusing and complex process for obtaining a student visa. This was clearly stated in a report by the Independent Chief Inspector of Borders and Immigration. Furthermore, for those who are successful in reaching the UK, intrusive attendance monitoring systems have been heavily criticised and have the potential to divide cohorts on campuses between British/EU students and others. This has a detrimental impact on the student experience while they are here, and the additional requirements for students from over 40 countries to register with the police is seen by many as one more example of the UK no longer wishing to encourage even well qualified students to come to the UK.
For those who need to extend their visas, moving from one course to a higher one, the process now takes at least three months from the point of submission to the return of the passport and other documents, with extensive stories of students unable to travel home for Christmas and, in some cases, not even for Easter.
Yesterday, Universities UK drew my attention to the example of the Brazilian students that the noble Lord, Lord MacGregor, referred to. That is a graphic illustration of how we have lost not only £66 million in revenue but good will. Negative perceptions mount.
We have also heard in today’s debate that the impact and consequences of these messages and complex processes is very evident. A survey of agents in 2012 by the international Agent Barometer has shown a drop of 8% in UK attractiveness as a destination for students while other countries have benefited, with New Zealand’s attractiveness increasing by 4%, Australia’s by 6% and Canada’s by 16%. As we have also heard, the Higher Education Statistics Agency has shown that the number of Indian students is down by 23%, including 28% fewer postgraduates, the number of Pakistani students is down by 13%, including 19% fewer postgraduates, while the total number of postgraduate students is down for the first time in 10 years.
Non-EU students support the provision of many key subjects, especially in science, technology and engineering, so this decline is worrying. A thriving postgraduate sector, supported by international students, is vital for ensuring that the UK remains at the forefront of international research. The Government could argue that visa applications for study at higher education institutions are up by 4.7% in the year to March 2013, but they are still lower than their peak in 2011, and they are applications rather than enrolments. More importantly, in the recent context of a rapidly growing and highly competitive international market, the low overall growth over recent years is likely to equate to a loss of market share.
The UK is becoming less attractive as a destination of study, while our competitors are making concerted efforts to increase their market share. Issues of economic benefits, international students as a source of soft power and our influence in the world have been well argued in debates on this subject in this House and elsewhere. In this context, I underline the Select Committee’s recommendation that migration policy cannot and should not be the sole concern of the Home Office and that a more integrated approach to migration should be adopted and should involve ministries such as the Department for Business, Innovation and Skills and the Foreign Office. In his response to our report, the Minister said that that is the case, but that does not ring true when you see how different policies are pulling in different directions.
In our debate in January this year, I said that now that the Government have dealt with so-called bogus students, the time has come to move on. Does the Minister agree that we need to work with partners, such as Universities UK, the British Council, the border agency and others to make sure that we get positive messages across and begin to take some constructive steps because turning perceptions takes much longer than good stories? In his response to this debate, will the Minister tell us whether the Government will commit to support growth in the higher education sector, set clear targets for growth in international university students, remove barriers to study in the UK and review current visa arrangements?
Visas: Student Visa Policy
Baroness Prashar Excerpts(11 years, 3 months ago)
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Baroness Prashar
My Lords, following on from the excellent and constructive introduction by the noble Lord, Lord MacGregor, I just want to ask some questions. In the face of such compelling evidence of the damage that this policy is doing to our reputation and long-term benefits, why are the Government not willing to remove international students from their target to reduce net migration as recommended by five Select Committees, including EU Sub-Committee F, of which I am a member? If all the changes that the Government felt necessary have been implemented to tackle abuse of the system, why will the Government not change their policy and use the opportunity to join the British Council, of which I am a deputy chairman, Universities UK, UKCISA, of which I am a president, and others in a drive to say that international students are welcome in the UK?
The benefits that will result from this change in policy are glaringly obvious: it would enable universities, the British Council and embassies to speak with one authentic voice in promoting the UK’s welcoming image to overseas students and it would enable UKBA to work collaboratively with universities to ensure visa compliance. It would be a positive outcome for everyone. At present the negative messages are undercutting the excellent and constructive work of organisations such as the British Council and the universities.
The British Council is creating new partnerships and sustaining long-term ones to encourage students and is building trust. The Government should be capitalising on this work and taking advantage of the growing global market for students. Competition is growing from countries such as Australia and Canada. The best and most innovative research comes from international collaboration; nearly half the UK’s research staff and PhD students are non-UK nationals. We should be ensuring that all policy initiatives support the objective of attracting international students, treating them well while they are here and building long-term good will in the national interest.
Furthermore, the process for obtaining a student visa has become far more extended, complex and confusing. The additional imposition from April of face-to-face interviews for students is yet another example. It is an obstacle race from start to end when the students are here. Why can the government agencies not work collaboratively with universities to improve matters? It is time we were told why the Government are continuing to pursue a policy that is so against our long-term interests.
Immigration: Foreign University Students
Baroness Prashar Excerpts(11 years, 10 months ago)
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Lord Henley
My Lords, what the noble Lord says is complete nonsense. Britain is not seen as a no-go area; we are seeing an increase in the number of students coming here to reputable universities. If this was a no-go area there would be a decrease in the numbers of students.
Baroness Prashar
My Lords, now that the Government have taken the steps to deal with bogus students, what steps are being taken to encourage bona fide and genuine students to come to the UK, and who is taking responsibility for that?
Lord Henley
My Lords, it is for the universities themselves to encourage people to come to them. As I have put it on a number of occasions, we want to control the bogus students. We have not seen a reduction in the number of proper students who come to proper universities. We have, in fact, seen an increase over the years, and I do not see why any changes we make to the way in which we count our immigration statistics are likely to discourage people from coming to this country.
Crime and Courts Bill [HL]
Baroness Prashar Excerpts(11 years, 11 months ago)
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Baroness Prashar
My Lords, I wish to speak about the part of the Bill which relates to judicial appointments. In so doing, I declare interest as the former inaugural chairman of the Judicial Appointments Commission, a post which I held from 2005 to 2010. I fully endorse the comments made by the noble Baronesses, Lady Jay and Lady Neuberger, and commend them both for the way that they have handled the issue of diversity and kept it high on the agenda. Like them, I welcome most of the changes contained in the Bill, but particularly those which relate to part-time working. It was in 2008 that the JAC first recommended that change, because the research which it conducted showed that for many underrepresented groups, the absence of part-time working was a real disincentive. Availability of part-time working will have a positive impact on diversity. I know that people have raised the issue of practicality, but similar objections were raised when the JAC itself was set up. It was suggested that making people apply would decrease the number of applications and that we would not get high-quality applicants. That has not been the case: neither the quantity nor the quality of the applications has diminished. I am sure that ways can be found to get around some of those difficulties.
I am also disappointed that there has been no relaxation on employed lawyers and no movement on appraisals. I am very concerned that it is intended that where a selection commission is convened to select a person for appointment as president of the Supreme Court and the Lord Chief Justice, the Lord Chancellor may be a member of the selection commission. The process by which judges are appointed is of constitutional significance, and the Lord Chancellor should have a limited role in the appointment of senior members of the judiciary. The rationale for establishing an open and independent process for judicial appointments in 2005 was to ensure that there was appropriate distance between the appointments process and the Lord Chancellor. The Constitutional Reform Act 2005 removed the role of the Lord Chancellor as the head of the judiciary and Speaker of the House. The position of Lord Chancellor, which is legally and constitutionally distinct from that of the Secretary of State for Justice, is now a more political role than it was. That change was one reason why the role of the Lord Chancellor was restricted in the Constitutional Reform Act.
Furthermore, in my experience, the process has worked fine in practice, so why the change? It is difficult to see the rationale for it. Indeed, the Select Committee on the Constitution states in its report that:
“The Lord Chancellor should continue to have a limited role in the appointment of senior members of the judiciary; he should be properly consulted and retain his right of veto in relation to the most senior appointments. He must also retain responsibility, and be accountable to Parliament, for the overall appointments process. But he should not be permitted to select candidates from a shortlist, nor should he sit on selection panels. Such changes would risk politicising the appointments process and would undermine the independence of the judiciary”.
I very much hope that the Minister will encourage his department to withdraw that change.
I would also like two new provisions in the Bill. I would like the duty contained in Section 64 of the Constitutional Reform Act, whereby the JAC is required to encourage diversity in the range of persons available for selection for appointment, to be extended to the Lord Chancellor and the Lord Chief Justice. Promoting diversity is a joint endeavour between the JAC, the Lord Chancellor and the Lord Chief Justice. The JAC alone cannot bring about the desired change, and the provision as it stands creates unrealistic expectations of the JAC, because it carries the whole burden, and issues which are outwith its responsibility are neglected. For that reason, it is very important that that change is included in the Bill.
My final comments are about the selection of the JAC commissioners themselves. The independence of the JAC is crucial; it is also a body of constitutional significance. If we want an independent judiciary, the body which selects judges should be independent and be seen to be independent. It is important that the membership of the JAC continues to be prescribed in primary legislation and that any changes be brought before Parliament. However, it is equally important that how the members of the JAC are appointed is prescribed in legislation.
The Constitutional Reform Act 2005 makes some provision for the JAC commissioners, requiring that they may not be appointed for more than five years at a time, and not for more than 10 years in all. However, there is a lack of specific detail about the process for the appointment of commissioners. The Ministry of Justice’s position is that the guidance for public appointments should apply, as the CRA does not make specific arrangements. Public appointments guidance provides Ministers with considerable flexibility in making appointments and, importantly, choice in candidates recommended for selections. In my view, it would be appropriate and consistent if the provisions in the Constitutional Reform Act for the appointment of judges, which were so carefully crafted to ensure judicial independence, were also applied to the appointment of commissioners and prescribed in legislation. This would in reality and in perception secure the independence of the body that selects judges. In recommending this change, I am not for a minute suggesting that the JAC is not independent or that its current members are not independent; but this change would ensure that this independence is safeguarded in the future, because there is evidence in other jurisdictions that attempts have been made to criticise the selecting body in order to impact on the appointments. So this small change will ensure that the independence of the judiciary is guarded if the body that selects judges remains independent.