Children and Young People (Scotland) Act 2014 (Consequential and Saving Provisions) Order 2015

Baroness Smith of Basildon Excerpts

Tuesday 17th March 2015 Grand Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, this draft order is made under Section 104 of the Scotland Act 1998. In summary, it proposes to do three things. Before explaining them in some—I am afraid—unavoidable detail, I would summarise them thus. First, we propose to amend Section 44 of the Children (Scotland) Act 1995 for the rest of the United Kingdom, with a related saving provision. Secondly, we propose to amend the definition of “child” for the rest of the United Kingdom in relation to the amended Section 44. Thirdly, we wish to make a minor corrective amendment to the definition of “secure accommodation” in the Criminal Procedure (Scotland) Act 1995 for the rest of the United Kingdom.

On the first of those, Section 44 of the Children (Scotland) Act 1995, which I shall refer to as the 1995 Act, makes provision to prohibit the publication of proceedings at children’s hearings and certain related proceedings before a sheriff. Section 44 was repealed, as it extends to Scotland, by the Children’s Hearings (Scotland) Act 2011 and replaced for cases going forward under that Act by a similar provision made in Section 182 of the 2011 Act. However, it is now clear that Section 44 is still needed to ensure that it continues to be an offence for a person to publish relevant information in relation to historic children’s hearings cases dealt with under the 1995 Act, and cases which began under the 1995 Act system and continue to proceed under that Act by virtue of the transitional arrangements.

The draft order is made in consequence of the Children and Young People (Scotland) Act 2014, which I shall refer to as the 2014 Act and which now reverses for Scotland the unintended repeal of Section 44 of the 1995 Act. I wish to reassure the Committee that while it is evident that the repeal of Section 44 was an error, no child’s welfare was jeopardised by it as the repeal was not commenced when the rest of the 2011 Act was commenced—the error having been identified before the commencement order. The 2014 Act also amends Section 44 for Scotland so that, going forward, it applies only to exclusion order proceedings under Section 76 of the 1995 Act. This is required as those proceedings remain under the 1995 Act and are not covered by the 2011 Act.

Given the United Kingdom extent of Section 44 of the 1995 Act, the draft order is required to give effect in the rest of the United Kingdom—that is, outwith Scotland—to both the amended version of Section 44, to restrict its future application to exclusion order proceedings under Section 76 of the 1995 Act, and to save the former version of Section 44 for both historic and ongoing children’s cases under the 1995 Act.

The second matter proposed is a related amendment to the definition of a child in Section 93(2) of the 1995 Act. Section 52(b) of the Criminal Justice (Scotland) Act 2003 made a change to the definition of child in Section 93(2) for the purposes of Section 44 of the 1995 Act, so that it was extended from persons under the age of 16 years to persons under the age of 18. However, that change was not extended to England, Wales and Northern Ireland. Just as the draft order seeks to bring the existing parallel texts of Section 44 into line, it seeks to have the same definition of child for Section 44 purposes for all jurisdictions.

Thirdly, the draft order also corrects a minor error made by the Section 104 order made in consequence of the 2011 Act. The previous Section 104 order amended Section 44(11) of the Criminal Procedure (Scotland) Act 1995 by substituting the definition of “secure accommodation” with a new definition that took into account the most up-to-date statutory cross-references for Scotland, England, Wales and Northern Ireland. However, the substituted definition contains an undefined reference to the “2000 Act”. The 2014 Act corrects this for Scotland by clarifying that the reference is to the Care Standards Act 2000. The draft order makes the same clarifications for the other jurisdictions.

This order again demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I can confidently say that this will be the last such order in this Parliament, so it may be for the interest of the Committee to note that 45 orders have been made under the Scotland Acts of 1998 and 2012 in this Parliament, since May 2010. In your Lordships’ House, 27 of these have been subject to the affirmative resolution procedure. There was an extra one in the other place which related to bonds, and therefore did not require to be affirmed by your Lordships’ House, and 17 of them were subject to the negative resolution procedure. That is indicative of the way in which the devolution settlement is flexible, and indeed of the commitment on the part of the Government to work to ensure that legislation passed in Scotland is applicable in other parts of the United Kingdom and that the devolution settlement works.

With that, I thank the officials in the Scotland Office, in various departmental offices and, not least, in my own office of the Advocate-General, for all the work they have put into these, as well as officials in the Scottish Government, because it requires a lot of co-ordination to get these orders to be brought forward and there has been a lot of co-operation here. I also thank the noble Baroness—I think this is the second time she has done a Scotland Act order—and her other colleagues, not least the noble Lord, Lord McAvoy, who I saw up until just a moment ago was engaged in the Chamber on the Corporation Tax (Northern Ireland) Bill. I appreciate the constructive co-operation they have given, and with those words I commend the order to the Committee.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his explanations, which are helpful. We support what seems to be the tidying up and correcting of some anomalies in the legislation. I also thank him for his generous comments. I know that he will have been somewhat surprised to see me here again today, having been expecting my noble friend Lord McAvoy, who discovered at the last minute that he was unable to be in two places at once. His skills extend some distance, but he could not quite achieve that. I will pass on the noble and learned Lord’s comments to him, and I know that he will welcome them. He has always found the Minister to be very co-operative and willing to engage in discussion of issues, which is appreciated. Again, the Minister will be surprised to see me—this is the second order I have done. My link is that I have a Scottish mother and I spent a lot of my childhood in Scotland; that alone does not qualify me, but I hope that it helps.

I have a couple of questions on this. I appreciate that Section 44 was repealed in error and that this is a step to correct that—to which we give our full support. When was it recognised that the mistake had been made? Was the issue ever raised in debates as the Bill was going through? The comments the noble and learned Lord made were helpful when he said that the repeal was not commenced, so no child had suffered as a result of that. That is clear, and it is helpful to have that information. However, for it not to be commenced, it must have been recognised very soon afterwards at least that there was a problem and that it should not have been repealed. Perhaps the Minister can help us by saying when that came to light; that is the only question we have on that. Overall, we support the order before us today.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Baroness for her kind comments. I, too, know the tremendous talents of the noble Lord, Lord McAvoy, but being in two places at once probably defeats him.

The noble Baroness asked when it was recognised that a mistake had been made. Clearly, it was not recognised during the passage of the Bill, otherwise up until the final stage 3 in the Scottish Parliament it would have been possible to move an amendment. However, it was recognised before the Act was commenced in 2013. The error was noticed between the passage of the 2011 legislation and its commencement: therefore, when the commencement was done, it did not commence the repeal provision. When the Section 104 order, which was consequential to the 2011 Act, was brought before this Parliament, the error had been noted by then, so in no way did we seek to extend the appeal provisions to England, Wales and Northern Ireland. I repeat the assurance that because of that and because of the lack of commencement, no child has had their interest jeopardised.

Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015

Baroness Smith of Basildon Excerpts

Thursday 22nd January 2015 Grand Committee

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his detailed explanation, which I found extremely helpful. I was struggling with the copyright changes and it is helpful to understand why they were brought forward.

I have a few comments and only a couple of questions. My understanding is that the order is purely consequential; there does not appear to be any new policy development coming through. However, what impact will it have, if any, on the development of offshore wind facilities in Scotland? Will it have a substantial impact on it?

In article 4 of the order, subsection (4) of proposed new Section 36D of the Electricity Act 1989 states:

“An application under this section must be made within the period of 6 weeks beginning with the date on which the decision to which the application relates is taken”.

Is six weeks the normal period of time, or was it chosen as the most reasonable period of time to allow for an application made under that section?

Again in article 4 of the order, subsection (2)(b) of proposed new Section 36D states, as one of the conditions that has to be met for a court to grant permission for an application to succeed, the court would have to be satisfied that,

“the application has a real prospect of success”.

That also appears as one of the conditions in proposed new paragraph 5C(2)(b) of Schedule 8 to that Act on page 4. Is it normal legislative language that the court should grant permission only if there is a real prospect of success? I am not sure whether I have seen that language; I have seen “reasonable” but I am not sure that I have seen “real”.

Could the Minister also clarify what the language in proposed new paragraph 5C(2)(a) means. It states that the court must be satisfied that,

“the applicant can demonstrate a sufficient interest in the subject matter of the application” .

I am unclear exactly what that means.

From what I have seen I think we can support the order. However, those points of clarification would be helpful.

[Lord Wallace of Tankerness (LD)]

My Lords, I thank the noble Baroness for her general support of this order. It is consequential, and it is neutral in terms of whether it will give rise to more applications for offshore wind turbines. However, in the regimes that are in currently in place, the Scottish Parliament can competently legislate for the inshore marine area but not the offshore marine area. This order is to ensure that there is consistency between the two regimes. It simplifies matters by giving direct access to the Inner House of the Court of Session—the equivalent to the English Court of Appeal—rather than having to work up through the sheriff court and subsequent appeals, as was the case previously.

The noble Baroness also asked whether the period of six weeks was normal. I rather suspect that it replicates the arrangements already in place. As to having a sufficient interest in the subject matter, it is normal, especially in more recent times, that there should be some interest or title to sue. I have to be careful about the use of that term of art. However, not just anyone can come off the street and raise an issue. There has to be some nexus between the aggrieved person and the proposal under challenge.

[Baroness Smith of Basildon]

I thought my asking a question might allow for further enlightenment when I saw the Minister seeking advice.

If someone does not have sufficient interest, why would they make an application? It seems to be a given. I do not understand why a person would make such an application to the court if they did not have any interest in it.

[Lord Wallace of Tankerness]

They might just have a remote interest and generally be interested. For the sake of argument, let us say that the development was somewhere off the east coast of Scotland and this was a person who was just generally interested in wind farm developments and was living in a stately pile in Argyll. You would not actually say that there was a sufficient interest for them to merit a title to raise an action. I am told that the six weeks replicates what was under the 2014 Act. That is certainly my understanding; if that is not the case, I will certainly write to the noble Baroness.

I will also have to check up—as we are introducing this measure, as it were, at the behest of the Scottish Government—as to whether the term, the “real prospect of success”, is normal. I know that there have been substantial reforms of the Scottish civil jurisdiction in very recent times and much of it is still to be implemented, but I will write to her and confirm whether that is a new term of art or something that goes back into the mists of time. The general point is that we are giving effect to something the Scottish Parliament could not legislate for under the 2014 Act, to ensure that there is consistency between what it can legislate for and what it can not.

Immigration Bill

Baroness Smith of Basildon Excerpts

Tuesday 1st April 2014 Lords Chamber

Moved by

[Baroness Smith of Basildon]

22: After Clause 18, insert the following new Clause—
“Residence permit: domestic violence
(1) A person (P) shall be entitled to a residence permit for three months for rest and reflection where—
(a) P is married, in a civil partnership, or in a durable relationship with someone who is lawfully in the United Kingdom; and(b) P is in the United Kingdom as a dependant of that other person; and(c) the relationship breaks down as a result of domestic violence.(2) The residence permit shall be available to P and any dependants already in the United Kingdom with entitlement to work.”

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, I suspect that somewhere it will be recorded that my noble friend Lady Lister made a very long speech.

I shall be brief on this amendment. This was an issue that I raised in Committee and I raise it again because I was disappointed with the Minister’s response at that stage and I thought that I would have another shot at getting some clarity on it.

Amendment 22 would provide that a person lawfully married or in a civil partnership or a durable relationship with somebody in the UK would have a residence permit for three months for rest and reflection where the relationship had broken down as a result of domestic violence. The noble Lord and I have spoken on other occasions with regard to this Bill on domestic violence issues, and he will know of my concern that victims of domestic violence should be given every opportunity to deal with the issues that they face and not have them further complicated.

The amendment is designed to provide respite or a breathing space for an individual at a very challenging and difficult point in their relationship and in their life. Currently, if someone is in the UK and is the spouse of a student or a points-based system visa holder and the relationship breaks down as a result of domestic violence, they have only one option, which is immediate return to their country of origin. That might involve leaving any employment or uprooting any children who may be in school, and the point was made earlier about people having friendships and relationships. That would leave somebody in an abusive relationship with a very difficult choice: they would have to stay in that relationship, face immediate return or overstay. Under the amendment, the person would be able to consider options and might be able to make an application to remain in the country in their own right or return to their country of origin in a safe and rather more dignified way with, one hopes, the ability to make arrangements for their children and their work. I accept that the drafting is not perfect but I hope that the Minister will understand the objective of the amendment.

We tabled a similar amendment in Committee and the Minister responded by saying:

“If an individual is the victim of domestic violence, they have full protection of the criminal and civil law and of the law enforcement agencies, regardless of their immigration status. That is not in question”.

But nor was it my question. He went on to say:

“But that is not to say that all victims of domestic violence should expect that they can stay here in the UK”.

That, again, is not the point of the amendment. He said:

“There is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who are here as the partners of someone who is a British citizen or settled in the UK, or a Foreign or Commonwealth member of Her Majesty’s forces who would be able to become settled were it not for service in those forces”.—[Official Report, 10/3/14; cols. 1577-78.]

That really did not address the point that we were making and we did not find it satisfactory.

At the time, the Minister said that he would write to me on that point. I do not appear to have had a letter by way of response. It is possible that I have missed it in the avalanche of letters that we have had on the issue. The noble Lord has been very good at responding and at having meetings, but I do not seem to have had that letter. Therefore, I have tabled this amendment to ask whether the Minister has given any further consideration to the points that we have made in relation to the three-month respite period. It would give a person the opportunity to make arrangements and to deal with their problems in a dignified and responsible manner rather than face a rushed deportation or remain in a very difficult relationship. It is a commonsense amendment to tidy up something that is currently a bit messy and unsatisfactory. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I, too, found the passage that the noble Baroness has just quoted and I realised that there was no reference in it to any exercise of discretion. There is a reflection period of 45 days for victims of human trafficking—at any rate, for those who go through the national referral mechanism. I do not think that that is long enough but that is another matter. I was glad to see that a 90-day period is suggested here. The Government, rightly, recognise problems of domestic violence, but can the Minister tell your Lordships whether there is any scope for exploring some sort of discretion to enable women—as it mostly would be, many of them women with children—to have a period in which to recover? They will not do that in 90 days, although I would not argue for more when we are exploring this, but they need a period in which to consider where next to try to take their lives and, quite often, their children. That would be the humane and proper thing for a civilised society to do. This is not suggesting that, having suffered domestic violence, there is some sort of instant entry to indefinite leave. It is just a temporary pause: an opportunity to consider what to do and where to go next.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, first I must offer the noble Baroness, Lady Smith, an apology because I do not think I wrote to her on this issue. She has not missed the letter; I missed writing to her. I am sorry about that. I will make sure that I write to her after this debate because there are extensive arguments. I want to keep the argument fairly focused for this evening.

I will start with a generality. The noble Baroness, Lady Lister, was kind to say that the Government take this issue seriously. We do indeed. Only last Thursday, I was able to respond to a supplementary question from the noble Baroness, Lady Howarth of Breckland, about a report on the way that police forces deal with domestic violence. I said that the Home Secretary is committed to tackling this scourge. She has made it clear that she expects speedy action to implement the recommendations of that report.

Having said that, it does not necessarily mean that individuals who have been the victims of domestic violence should expect to be able to remain in the UK where their migration status would not otherwise permit them to do so. While I run the risk of repeating myself from last time and being quoted back yet again, as we have discussed previously there is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who came to the UK intending to make a permanent life here as the partner of someone who is already a permanent resident or who, in the case of the partner of a member of Her Majesty’s forces, is prevented from applying for permanent residence during the period of service. That just reiterates the position of that particular group of people.

However, the position is different for individuals who are in the UK because of a relationship with someone who does not have the right of permanent residence. Those individuals should not have any expectation of remaining in the UK outside that relationship, regardless of the reasons for that relationship breaking down. To grant leave to an individual who is in the UK as someone’s partner but who is not settled here on a basis other than the ongoing partnership would suggest that his or her right to be in the UK was independent of that partnership, which is not the position. It would not be helpful to encourage anyone to think otherwise or, by the grant of a specific period of leave, to give false hope that they might be able to stay. However, we take a pragmatic and practical view in these cases. If a migrant no longer meets the requirements of their leave because a relationship with a spouse or partner has broken down, discretion may be used so that, rather than curtailing leave with immediate effect, the Secretary of State may curtail that leave—if I may use the word “normally”—normally to a period of 60 days. This would allow the migrant time to make arrangements to depart the UK voluntarily without being here illegally, or to submit an application to remain in the UK on another basis. That is a relevant consideration, which I hope noble Lords will understand.

The Government consider that it is fair, reasonable and proportionate to distinguish between those whose partner is here permanently and those whose partner is here temporarily and may never become a permanent resident. I acknowledge that this is a difficult area but I think that noble Lords will understand the difficulties of extending rights in this area. I consider the position that I have outlined is the right one. As I have said, I certainly will write to the noble Baroness, with a copy to noble Lords, and will place a copy in the Library. I appreciate that this is an important issue to get right. None of what I have said dilutes our determination that we should pursue the issue of domestic violence, which ruins lives and is never acceptable. I hope that the noble Baroness understands our position and will withdraw her amendment.

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Lord for that response, although I am not sure that I understand his position. I wish that I had received a letter. With the benefit of a letter addressing the points that he has made, perhaps my amendment and the points raised in the debate would have been different. He seemed to be saying that no action should be taken. He referred to granting indefinite leave to remain, which is not what we are suggesting. All we are suggesting is a breathing space for someone to make arrangements. However, he went on to imply that perhaps a breathing space may be granted, although I am not sure of the circumstances in which that would be granted.

At one point I thought that the Minister’s reply seemed rather insensitive and unhelpful, but then it seemed that he was being more helpful. I am really not clear about the process. I would be grateful if the Minister would write to me and I could reflect on that. I know that it would not be usual to bring this back at Third Reading but, given that I did not have the response in order to address the points on Report that I would have addressed otherwise, I hope that he will be understanding and that we can discuss this issue further. At this stage, I beg leave to withdraw the amendment but I would like to return to the issue with the noble Lord, given his somewhat contradictory answer.

[Lord Taylor of Holbeach]

Of course, I am very happy to talk to the noble Baroness about the detail of this. I mentioned that the Secretary of State considers these cases and normally there is a 60-day period to get the individual’s status sorted out. We appreciate that this is not easy for individuals to cope with. I think that 90 days was mentioned by the noble Baroness, Lady Lister, and also by the noble Baroness, Lady Smith. But in practice, 60 days is within the Secretary of State’s discretion.

I will write with fuller detail. I hope that we will have a chance to talk about this before we get to Third Reading.

Female Genital Mutilation

Baroness Smith of Basildon Excerpts

Thursday 20th March 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, the noble and learned Baroness is absolutely right: the Crown Prosecution Service can take only cases referred to it by the police. In turn, the police require co-operation and engagement on the part of those involved in schools, education, the health service, including GPs, and, indeed, the communities themselves. That is why there is a range of activities across government, agencies and the third sector to try to raise awareness and improve lines of communication so that cases can be reported with more confidence.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister’s answers are very clear, and I agree entirely with the noble Lord, Lord Dobbs, and the noble and learned Baroness, Lady Butler-Sloss. It is clear that legislation alone has not been an adequate deterrent. However, the French system works particularly well, whereby young girls who present to hospital are examined to see whether they are victims of FGM. We would not necessarily want to go down that route but, given that it has been successful, will the noble and learned Lord take on board the comments made by the noble and learned Baroness, Lady Butler-Sloss, but also look at other ways of addressing this issue, including involving hospitals and other agencies which could bring evidence to the attention of the CPS to ensure that we get a prosecution, as that will be the only genuine deterrent that will really make a difference?

[Lord Wallace of Tankerness]

My Lords, the noble Baroness mentions France. My understanding is that there is no specific crime of female genital mutilation in France. Nevertheless, I think that other issues are involved there which are somewhat different. However, I reassure the noble Baroness that the Crown Prosecution Service is looking at experience in different jurisdictions to try to get information on best practice. With regard to hospitals, which she mentioned, as from next month there is intended to be a reporting requirement from hospitals of cases which they discover, and a database will be built up. It is important to remind those involved that there is a legal obligation on NHS staff to safeguard children and young people and that, if they identify someone they consider to be at risk, or who has already undergone FGM, they must respond appropriately by involving the social services, which, in turn, can involve the police.

Immigration Bill

Baroness Smith of Basildon Excerpts

Wednesday 5th March 2014 Lords Chamber

[Baroness Manzoor (LD)]

My Lords, I support my noble friends Lady Hamwee, Lord Paddick and Lord Avebury, and align myself with the comments that they made regarding a robust and independent review. As the previous Legal Services Ombudsman and Legal Services Complaints Commissioner, I know the importance of this. It is imperative that the administrative review is not only independent but is seen to be independent for people to have confidence in the decision. I give your Lordships this analogy: a manager of a football team does not referee a game in which his own team is playing.

[Baroness Smith of Basildon (Lab)]

My Lords, it is an indication of the discontent with Clause 11 that this is the second debate we have had on it. We had an interesting and lengthy debate on Clause 11 on Monday in relation to the principle of the Government’s proposals, and on our amendments and those of the noble Lord, Lord Hannay. Noble Lords may recall our strong opposition to the Government’s proposals to remove appeals in the way they are seeking to do. I will not repeat all the arguments that I made on Monday, other than where they are relevant to this amendment. However, for the convenience of the Committee, my comments are recorded at cols. 1178-81 of Monday’s Hansard.

Originally, Amendment 30, in the name of the noble Baroness, Lady Hamwee, was grouped with others on appeals, including a not dissimilar one from myself, Amendment 27, which in some ways is like a sunrise clause to review and improve the current position before any further moves are taken to change the system to administrative review, although we were more specific as regards using the expertise of the Chief Inspector of Borders and Immigration. That is not particularly significant at this stage; both amendments were tabled in response to the existing problems in the system, whereby a very high proportion of the decisions appealed succeed, and an even higher proportion of those are down to casework errors. Therefore, I have no difficulty whatever in supporting the principle of this amendment, although I had hoped that the noble Baroness would support the principle of my amendment when I spoke to it on Monday evening. I recall that no noble Lords present commented on our amendments in that debate other than the noble Baroness, Lady Lister, perhaps because she has degrouped her amendment today as she wants a separate debate on it, even though the principle involved is very similar.

I repeat the broader point that we made on Monday and invite the noble Baroness to comment on our very real and genuine concerns about, not just the detail, but the principle of the Government’s proposals. We can all sign up to a process that gives timely, accurate decisions, and a swift process to address any errors. I do not think there is any dissent around those principles. However, if we take this clause in context, that is not what it does.

On Monday, we also moved a Motion that this clause does not stand part of the Bill. That device is often used to give your Lordships’ House the opportunity to have a broader debate around the principles of an issue. However, I also made it clear that removing the clause entirely would be our preference given the current position and the quality of decisions that are taken. Failing that, our Amendment 27 addressed exactly the same principle as that in the amendment proposed by the noble Baroness, Lady Hamwee, today. I also spoke to our Amendments 28 and 29 regarding an impact assessment and a review.

Our concerns about this clause and the proposal for administrative review go deep and are not confined to any individual group who would be affected—a lot of the debate on Monday evening centred on students—as this goes wider and would affect everybody who applies for review. The right to appeal is a fundamental principle of British law. As I say, we support a process that gives timely, accurate decisions, and a swift process to address any errors. We believe that such a decision should be challengeable and that recourse should be available.

However, as I explained on Monday and as other noble Lords have said today, the necessity for appeals is even more essential when we know how flawed the current system is. It is well documented that the department is already struggling to deliver a quality service and that there are huge casework backlogs, to which the noble Lord, Lord Paddick, referred. I provided details of the backlog of shocking cases regarding the length of time for which people are waiting for decisions to be made. More important is the quality of decision-making. The figures reveal that 32% of deportation decisions, 49% of managed migration decisions relating to work and students and 49% of entry clearance applications were successfully appealed last year. Despite the fact, rather surprisingly, that there are no official data from the Government, a Home Office sampling exercise revealed that 60% of the volume of appeals allowed are due to caseworking errors. That means that almost 30% of all appeals—60% of the 49%—are allowed due to caseworking errors.

When so many decisions are found to be flawed, should we really be trying to remove the current routes for appeal and replace them with administrative reviews? I asked the Minister when the sampling exercise was undertaken and over what period of time. I know that he could not reply on Monday. If he is able to do so today or write to me, it would be helpful.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

I think that I did reply, if the noble Baroness looks at the Official Report. I said that it was between April and June 2013.

[Baroness Smith of Basildon]

That is really helpful and I apologise. I shall reread Hansard. I am sure that I did not doze off at that point.

As other noble Lords have said, we should focus on improving the efficiency of those initial decisions and making sure there is little need for appeals in the first place, because that is what will create confidence in the system, which itself will reduce the number of appeals. I am raising these points again now because it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging this inefficiency. I know the Minister pointed to an administrative review, but we have heard strong arguments today and previously that that is not the way forward. He said that the person reviewing the decision will not be the person who made the original decision but a cohort of immigration staff drawn from those who already make decisions. However, my understanding is that the Home Office already has a system whereby, in some cases, senior staff already review certain decisions. I cannot, therefore, see how an administrative review would be particularly significant if a number of decisions are currently overseen and reviewed by senior staff. Given the very high proportion of appeals allowed, which in most cases result from caseworking errors, it is clear that this problem with the quality of decision-making has to be addressed. Should that not be looked at by someone who is completely independent for there to be a real confidence in the system?

The noble Lord, Lord Avebury, raised the issue of the Government’s reliance on judicial reviews as recourse. A number of noble Lords today and previously have raised concerns about the cost. Not only do judicial reviews cost more than appeals but costs can be sought from the other party, and damages may be claimed but the Government have to recognise—indeed, they do so in their assessments—that the number of judicial reviews is likely to increase. The noble and learned Lord will be aware of the comments by the Joint Committee on Human Rights that the Government’s proposals on judicial reviews do not take into account the committee’s comments and do not look at how,

“the Government’s other proposals to reform both legal aid and judicial review itself”,

impact on the ability to seek judicial review.

I can understand why the noble Baroness has brought forward her proposal but I do not really understand why it had to be a stand-alone debate, considering that we had a similar debate on Monday, when her points could have been made. I see that the noble and learned Lord agrees. However, there is a strong case to oppose this clause as a whole, and I see this amendment, which is similar in principle to our proposal on Monday, as a fallback position and not the solution. I also hope that the Minister will recognise that there are great concerns about the principle and implementation of the Government’s proposals, and will look at them again, given that there have now been two lengthy debates on this issue.

[Baroness Hamwee]

My Lords, before my noble and learned friend responds, perhaps I may make it clear—I thought I had at the start of this debate—that I am not seeking to debate Clause 11. This amendment proposes inserting a separate clause after Clause 11 and is intended to be constructive on administrative review, not destructive of Clause 11.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lady Hamwee for tabling this amendment. She described it as being a self-standing amendment outwith Clause 11. However, it would delay the commencement of Clause 11 until such time as an instrument which provided for the conduct of administrative review had been approved by both Houses of Parliament. The proposed new clause also seeks to include within that instrument provision for procedures for administrative review to be agreed by independent persons, for oversight of those reviews by an independent person and for that independent person to report to Parliament. The proposed new clause also provides that Clause 11 should lapse after five years unless an order for it to continue in force is laid and not annulled by either House of Parliament.

The process governing administrative review will be set out in the Immigration Rules. There is no power in this Bill to make an order that will set out the administrative review procedure. Furthermore, as I have said, the administrative review procedure will be set out in the Immigration Rules prepared under the power in Section 3(2) of the Immigration Act 1971. The procedure under that Act provides that the Immigration Rules are laid before Parliament. Either House may seek a debate on those rules and pass a resolution disapproving of the changes proposed. Such a resolution would require the Secretary of State to lay further rules within 40 days. This procedure provides for parliamentary scrutiny of the process for administrative review, so there will be an opportunity for your Lordships’ House, if it so wishes, to scrutinise the process for administrative review, and indeed there will be an opportunity for Parliament to seek changes to that process. Therefore, I believe that it is unnecessary to seek an amendment to the Bill that provides for parliamentary scrutiny and approval of the rules governing the administrative review process. The process for scrutinising the Immigration Rules already provides for that.

However, I fully accept that there are concerns about the requirements relating to the administrative review process. Those concerns were expressed by the noble Baroness, Lady Smith, in our debates on Monday and are indicated by the new clause proposed by my noble friend and in the comments of a number of other of my noble friends. The safeguards sought are that the administrative review procedure should be agreed with an independent person, that there should be oversight of reviews by an independent person and that that independent person should report to Parliament.

It is our view that the administrative review procedure is best developed and finalised by those who will operate it. That does not mean that the process is being developed behind closed doors. As I think was acknowledged by my noble friend in moving her amendment, before Committee stage in the other place we published a statement of intent on administrative review setting out the details of the procedure, and it is that procedure which has come under scrutiny in this proposed new clause.

I can confirm that administrative reviews will be undertaken by Home Office staff who will be independent of the original decision-maker and entirely separate from the initial decision-maker’s line management chain. We intend to establish a separate administrative review function for in-country migration casework. This means that those undertaking the reviews will be separate from those taking the decisions under review. We expect some of our most experienced staff to be among those undertaking administrative reviews. That does not mean that the initial decision-making will be left to inexperienced staff. I agreed entirely with my noble friend Lord Avebury when he said that the important thing is to get these decisions right in the first place. I could not agree more. It is worth noting that only 10% of decisions taken in-country are refused and therefore only a proportionate number of experienced caseworkers will be redeployed to review work from initial decision-making.

The noble Baroness, Lady Smith, quite properly said that, of the cumulative figure of 60% from the sample, 30% of refusals are due to that kind of administrative error. However, it is also important to recognise that, in terms of the totality of decisions taken in this field, that amounts to something like only 3% of all decisions taken. Of course, that presumes that every decision on granting an application is correct—we tend not to have appeals against incorrect grantings—but that puts it into some kind of perspective. Although 30% is a high figure, I am not running away from the fact that 60% came as a surprise, and it is important that we bear down on and reduce that figure.

The point of arguing for an administrative review is that, as the noble Baroness pointed out from that sample, there have been caseworking errors. It is better that those on the receiving end of the errors are able to get them corrected more quickly and we are serious about meeting the 28-day target. Indeed, it would be far less costly to do so through an administrative review than through the whole panoply of an appeal.

[Baroness Smith of Basildon]

In the information that I have, a number of these decisions are reviewed later by a senior officer. If some of those are found to be incorrect, it would indicate that the review process is not as good as the Minister thinks. Does he know how many decisions ultimately appealed and won were reviewed by a senior officer as well as the initial decision-taker?

[Lord Wallace of Tankerness]

I am afraid that I do not have a figure for that further subcategory. If it exists, I will make sure that I inform the noble Baroness and others who have taken part in this debate, and will put a copy in the Library. That certainly could help to inform the debate as I am sure this issue may well arise later in our deliberations. All staff undertaking administrative reviews will receive full training in all routes and categories before they commence their work as part of the review team. I believe that the statement of intent indicated that it is intended to have a separate dedicated team of reviewers in each specialist area. Regular reports on the performance of the administrative review process as a whole will be sent to senior management. We will establish feedback mechanisms to ensure that lessons learnt are fed back to case workers.

I think I indicated in our debate on Monday that, within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan. Again, it is important to remember that the procedure will be set out in rules that Parliament can scrutinise. As I have said, we have committed to an independent oversight by the chief inspector in the public statement of intent that I have just read out. He has the power to undertake an inspection off his own bat and may do so if there are concerns about the administrative review process. His reports are published and Parliament may hold the Government to account in respect of those reports by means of questions and debates. Having to meet these additional requirements may also, if we were to go down the road proposed by my noble friend Lady Hamwee, delay the commencement of Clause 11. She quite properly said that there might be certain attractions in having two systems running in parallel, although I suspect that that would be a bureaucratic nightmare and would not properly serve the interests of anyone, least of all the applicants.

The delay in commencement is undesirable because it would delay migrants who would benefit from these changes, which would provide faster and cheaper resolution of caseworking errors. This delay could arise because the Home Office needs to identify an independent person who could take on the role envisaged in this amendment. This would also add an administrative layer to the development and operation of the administrative review. It is envisaged that the chief inspector would take on this role, a point that I already have made. We intend to benefit appellants and those who will no longer have a right of appeal under Clause 11. My noble friend Lady Hamwee proposes that it should lapse in five years unless there is parliamentary approval for it to continue in force, which I feel would not be of benefit.

Clause 11 fundamentally reforms appeal rights. It is a reform that is needed to simplify an overcomplex framework and to provide a faster and cheaper remedy for caseworking errors. However, because this reform is fundamental, reversing the change after five years could cause even further upheaval. The changes made to the appeals process and the court system would need to be undone. That could come not only at cost but also at the expense of considerable uncertainty.

My noble friend Lady Hamwee also made reference to the administrative review system that is already operating overseas. Some 90% of these reviews have been completed within the target of 28 days for the quarter ending June 2013. The proposed process for in-country, which we are debating here, mirrors the approach taken overseas. My noble friend also made the point that we are asking people to reverse the decision of their work colleagues and, as she quite properly put it, to overturn the decision of the Secretary of State. She mentioned the figures, including that in entry clearance cases in 2012 for operating overseas the initial decision was overturned in 21% of cases. I sometimes think that in this area you are damned if you do and damned if you do not. The figure of 21% is a sizeable number, which suggests that those who are doing the review are not necessarily intimidated by having to overturn the Secretary of State’s decision. Equally, one might say that 21% is far too high and that the figure should be lower, in which case they may say that they were frightened. The point is that the system that has been operating overseas has had 90% of cases completed within the target of 28 days. It shows that those who are doing the reviews are not scared off or hesitant in overturning decisions when mistakes have been made.

I recognise that there are concerns and I suspect we will return to this and that amendments will be tabled on Report, which will offer us a chance to reflect further on the points that have been made both today and on Monday. However, I believe that what we are putting in place will bring considerable simplification and lead to quicker and cheaper decisions. Therefore, for the reasons I have given on some of the detail but also because of the delays that could take place, the fact that there will be an opportunity for noble Lords to scrutinise the rules that will be put in place and because the chief inspector will be able to conduct his own review, I invite my noble friend to withdraw her amendment.

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[Lord Bourne of Aberystwyth (Con)]

My Lords, I move to resist these amendments and support Clause 12 of the Bill. The effect of Clause 12 means that deportation may be immediate and not suspensive, unless the Home Secretary feels that there is a real risk of serious, irreversible harm to the appellant pending the appeal. I believe that that will apply only in a very limited number of cases. That does not mean that it is not serious for those cases, but could the Minister in responding give some estimate of the number of cases that it is likely to affect? The other important point in relation to Clause 12 is that the Home Secretary has to be convinced that the deportation is conducive to the public good and has to certify that it is consistent with our human rights obligations. Those are two very important qualifications. That is worth stressing.

First, the case for Amendment 31A was persuasively put, but it removes the clause entirely from the Bill and would mean that these out-of-country appeals would become in-country appeals. Given those limitations on the Home Secretary’s ability to act, that would be entirely wrong.

On Amendment 31, again, I understand the points made by my noble friend Lady Hamwee. They were very well put and no doubt prompted by humane considerations that I identify with. However, in addition to the fact that it undermines the ability of the Home Secretary to act where it is conducive to the public good, there are two other fundamental points to be made here. First, in relation to this particular amendment, there is no limitation on how long the child has been in the United Kingdom. They could have been here a matter of weeks or days, or even hours. I appreciate that that is in terms of the framing of this particular amendment, but it is a serious flaw.

In addition, and perhaps more fundamentally, there is the issue of whether children will be brought over to appellants where that is certainly not in the best interests of the child. It may well be in the best interests of the child to remain with other family members—possibly the other parent—overseas in their home country. I realise that that is an unintended consequence of the amendment, but it could well be the case. For those reasons, I am very much against the two amendments.

[Baroness Smith of Basildon]

My Lords, as I understand Clause 12, it is all about dealing with appeals and provides a power for the Secretary of State to certify that to require an appellant who is liable to deportation to leave the UK before their appeal is determined would not cause irreversible harm, in which case that person can appeal only from outside the UK. We do not oppose the clause as a whole but these amendments are very useful in trying to probe the intention and practicalities. I have a few questions for the Minister.

I read Hansard from the other place, where questions were raised by my colleague David Hanson. I do not really feel that all the answers given fully addressed the questions to my satisfaction. It would be useful if the noble Lord could help address those. My understanding is that when the Bill was first introduced into the Commons it referred only to foreign criminals, but was then later amended to include all those liable to deportation. Mark Harper, who was then but is no longer the Minister, explained that this included,

“individuals who were being deported from the UK on the ground that their presence would not be conducive to the public good”.—[Official Report, Commons, Immigration Bill Committee, 5/11/13; col. 205.]

That was not in the Bill originally: it was introduced at a later stage.

When the then Minister was pressed on this, he gave a couple of examples such as a gang member or a member of a serious organised crime syndicate. I would not expect the Minister here to give an exhaustive list, and I am not asking for one, but the clause gives considerable discretion to the Home Secretary, or any future Home Secretary, who can determine who is deported under that definition. I should just like to probe further to get more information from the Minister about how that would apply and who it would apply to, but also the grounds on which, and how, the Home Secretary would make that judgment.

That is a very important point; there is a lack of clarity as the Bill stands. At the time, the Minister said that the numbers would be very small, but if the Government bring forward a clause such as this, they must have a reason for doing so. I should expect them to have some idea of the kind of number—I would not for a moment expect an exact number—of cases they expect the provision to apply to. I would like to know the reasons why this was brought forward in the first place and why the change was made from criminals to those who would not be conducive to the public good.

Another issue that has been raised is about the family members of those who have not been convicted of a crime but who have been deported under the clause. The Minister in the Commons said that he would write on that issue. He may have written to colleagues in the other place, but I have not seen his response. On removals, I would like to know the position of family members. The point has already been made about children, but there will be other vulnerable family members. What will be the position of family members, including vulnerable ones? What information will they be given? What happens if the person has been deported and then returns to the UK when they win their appeal? Indeed, will they be allowed to return to the UK if they win their appeal, or will they have to make a separate visa application to return?

I find a fair bit of uncertainty in the clause, and we lack information as to exactly how it will work. I should be grateful for further clarification from the Minister.

[Lord Wallace of Tankerness]

My Lords, I again thank my noble friend Lady Hamwee for moving her amendment and raising the issues which arise under Clause 12.

At present, all appeals where there is a human rights claim suspend deportation unless the claim can be certified as clearly unfounded. The powers introduced by Clause 12(3) mean that those facing deportation, including foreign criminals, may be deported, and their appeal heard while they are out of the country, if the Secretary of State certifies that that would not breach the UK’s obligations under the European Convention on Human Rights—a point well made by my noble friend Lord Bourne of Aberystwyth. This is intended to build on the Crime and Courts Act 2013, where the Government made similar provisions for out-of-country appeals in national security deportations. The serious irreversible harm test is one used by the European Court of Human Rights when it decides whether an individual deportation must be suspended, and also in its rulings on what types of claim must be granted an in-country appeal. Amendment 31 would limit the scope of the power to those who are being deported who do not have a child in the United Kingdom, while Amendment 31A would remove the power entirely from what would become Section 94B of the Nationality, Immigration and Asylum Act 2002.

I reassure the Committee that the clause will impact only on a very small cohort of cases—those whose actions and behaviour is non-conducive to the public good—and that in limiting the power to deportation cases, the Government are acting in a proportionate way, and not going as far as European Court of Human Rights cases allow. I assure the Committee that by framing the provision in this way, an arguable asylum claim would never qualify for certification under the power. The Secretary of State cannot use the new power where there is an arguable risk of a breach of Article 2 or Article 3 of the European convention.

Equally, the drafting of the Bill means that this power will not be available for those whom the Government are seeking administratively to remove for the purposes of immigration control—such as illegal entry or overstaying a visa, although ECHR case law would in fact have allowed such an approach.

A deliberate decision has been taken to make the power available only for a small cohort of cases where the individual’s actions—the action of the person for whom certification for deportation is relevant—the vast majority of whom will be convicted criminals. I will come on to the point raised by the noble Baroness about others. This applies if the individual’s actions mean that the Secretary of State considers that their presence in the United Kingdom is not conducive to the public good. Perhaps I may illustrate the size of the issue for the Committee. According to Ministry of Justice figures, in 2012-13 the Asylum and Immigration Tribunal received 1,800 appeals against deportation, which included a number of miscellaneous appeals. This change would have impacted on less than 2% of the appeals that the tribunal received that year.

The Government would not seek to remove family members of those whom we are seeking to deport if they have immigration status in the UK in their own right; for example, if they are an EEA national exercising treaty rights or individuals with indefinite leave to remain, or have valid leave as a student. Even in the rare cases where the Government seek to deport family members along with the principal, for example because their status in the UK is based solely on their relationship with the deportee, this clause does not allow the appeals of dependants to be certified: they will be suspensive. The power is also a permissive one in that the Secretary of State may certify appeals but is not required to. This will allow cases to be considered on their individual facts and ensure that the Government complies with their duty to consider the best interests of the child as a primary consideration in immigration decisions.

The noble Baroness asked what would happen if a person wins their appeal. If an individual wins an appeal from abroad, the UK Government will facilitate their re-entry into the United Kingdom.

In summary, the power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The clause is limited and tightly defined to ensure that only those who have caused or are trying to cause harm are deported from the country quickly.

--- Later in debate ---

[Lord Pannick]

My Lords, I add my support to the general concerns expressed so eloquently by the noble Baroness, Lady Lister. I have two questions for the Minister. First, can he confirm, as I assume he will, that nothing in Clause 14 is intended to detract from the important principle of law that the best interests of the child are a primary consideration for decision-makers in this context? It is important for Pepper v Hart purposes that the noble and learned Lord makes the position unambiguously clear.

Secondly, before Report, will the Minister please undertake to give further consideration to the advantages of referring in Clause 14 to the best interests of the child? I ask that question as I have some difficulty in understanding how the test in new Section 117C(5)—that is, exception 2: the test of whether the effect of deportation on the child would be unduly harsh—is compatible with looking to the best interests of the child as a primary consideration.

[Baroness Smith of Basildon]

My Lords, this is one of three groups of amendments around Article 8 that we have tabled to Clause 14. I wish to make a couple of brief comments. I want to put on record, and make very clear, that we fully support Article 8. We understand that it is not an absolute right. It is a qualified right and those qualifications also have to be understood. Any interference with that right has to be within those qualifications. However, we share concerns about how Article 8, and those qualifications, have been interpreted in some cases involving foreign criminals convicted in the UK and then put up for deportation. There are problems with criminals who we cannot deport who have committed serious crimes, and where Article 8 has been considered to be used inappropriately, and where the question has to be asked whether the qualifications have been fully considered. The balance is one to be reached by the courts in individual cases, but we consider it right that Parliament should set out how qualified rights should be balanced in different areas.

There is wider concern about the Government’s failure to deport foreign criminals and the gap between the inflammatory rhetoric used on some occasions with regard to immigration issues and the reality of those issues. Since the Home Secretary took office, the number of foreign criminals being released into the community has gone up and the number of people removed from our country for breaking the rules has gone down by 13% in the past three years. I say to the Minister that it is important for the Government to get the basics right before looking at new areas—for example, ensuring that we have the right staff and the right number of staff in place to deal with these issues.

I listened very carefully to the noble Baroness, Lady Lister, and I was relieved when the noble Lord, Lord Pannick, said that he was slightly confused about a contradiction that appears to have arisen in this context. I am a non-lawyer and I was confused as well. I was relieved to hear that lawyers can also be confused about the Government’s intentions in this regard. The noble Baroness, Lady Lister, made a very powerful speech and I will be interested to hear the Minister’s comments on it.

I welcomed the comments of the then Minister, Mark Harper, to the JCHR about the Government’s responsibilities under the UN Convention on the Rights of the Child. There was absolute confirmation that the best interests of the child will be considered. However, other comments have been made that appear to qualify that. That would seem to undermine the concept that the best interests of the child will be considered. I do not mean to be facetious when I say that it sounds as if the best interests of some children will be considered. I do not understand the contradiction between what is in the Bill and the very welcome comments made by the former Minister that the Government will always consider the best interests of the child. How does that conflict, confirm, or work with what is in Clause 14? Confirmation from the noble and learned Lord that the best interests of the child will be considered would be very welcome.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Baroness, Lady Lister, for introducing this amendment, and thank those who have raised very important points in relation to children and the best interests of the child.

I crave the indulgence of your Lordships’ House to take a few moments, before I reflect on the specific amendments, to set out briefly what was in the Government’s mind in bringing forward this clause, and how we expect it to operate and what it is expected to achieve. I do so to set it in context for this and the next two groups of amendments.

Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life. As the noble Baroness, Lady Smith, said, it is a qualified right. The individual’s right under Article 8(1) can be outweighed by measures necessary for and proportionate to the legitimate aims under Article 8(2), including protecting the public by deporting foreign criminals and safeguarding the United Kingdom’s economic well-being by controlling immigration.

There is a clear public interest in these aims. These are also matters of public policy which we believe is the responsibility of government to determine, subject to the views of Parliament. Clause 14 will make clear what Parliament thinks is in the public interest in terms of controlling immigration and protecting the public where Article 8 is engaged in an immigration case. It is for Parliament to decide what the public interest requires. It is then for the courts to have due regard to that when considering the proportionality of any interference in the exercise of an individual’s right under Article 8. We believe that is the right approach and that is reflected in how Clause 14 has been framed.

The Committee will recall our debates on the new Immigration Rules on family and private life which were implemented on 9 July 2012. The Immigration Rules, laid before Parliament by the Secretary of State under Section 3(2) of the Immigration Act 1971, are a statement of the normal practice to be followed by the Secretary of State’s caseworkers in making immigration decisions under the statutory framework that Parliament has provided. It is in the interests of a clear, consistent and transparent immigration system in which applicants and the public can have confidence that these rules should enable the Secretary of State’s caseworkers to decide individual cases lawfully and in accordance with the Government’s immigration policy. The courts have agreed the importance of having such a set of rules —for example, in the decision of the Judicial Committee of your Lordships’ House in the case of Huang.

The key test that both the Secretary of State and the courts apply in assessing the Article 8 compatibility of a decision is whether it is proportionate. However, in immigration decisions engaging Article 8, the courts, prior to the July 2012 rule changes, were unable to give proper weight to the Government’s and Parliament’s view of the public interest because the Immigration Rules did not adequately reflect Parliament’s view on how the balance should be struck between the individual right to respect for private and family life and the need for effective immigration control to protect the public and the economic well-being of the United Kingdom.

I shall provide a bit of history. When the Human Rights Act 1998 was commenced in 2000, the rules were amended to require all Home Office staff to carry out their duties in compliance with its provisions, but there was no substantive change to the family or private life part of the rules to reflect how individual rights and the public interest should be balanced. There was no attempt thereafter to align the rules with developments in case law, such as the decisions of the Judicial Committee of your Lordships’ House in the cases of EB (Kosovo) and Chikwamba. Instead, previous Secretaries of State asserted that if a court thought that the rules produced disproportionate results in a particular case, the court should itself decide the proportionate outcome on the facts before it. This approach meant that the courts could not give due weight to the Government’s and Parliament’s view of the public interest under Article 8, as the courts did not know what that view was. It also did not properly reflect the responsibility of the Government and Parliament for determining the public policy framework under which immigration decisions should be taken. Indeed, as I have already said, it left the courts to develop public policy themselves through case law on issues such as the appropriate level of maintenance for family migrants. We do not believe that that was conducive to clear, consistent and transparent decision-making by the Secretary of State’s caseworkers.

It was against that background that on 9 July 2012 the Government implemented major reforms of the Immigration Rules relating to private and family life. The new rules filled the public policy vacuum that had been inherited by setting out the position of the Government on proportionality under Article 8, in the light of existing case law and of evidence such as the report of the independent Migration Advisory Committee on the appropriate level of the minimum income threshold for sponsoring family migrants. The new rules were debated and approved by the House of Commons on 19 June 2012 and were debated by this House on 23 October 2012, following which the noble Baroness, Lady Smith of Basildon, withdrew her Motion of Regret. The new rules set out how the balance should be struck in Article 8 cases between an individual’s rights and the public interest. They provide clear instructions for the Secretary of State’s caseworkers on the approach they must normally take, and they therefore provide the basis for a clear, consistent and transparent decision-making process. The new rules also form the basis for the assessment by the courts of the proportionality under Article 8 of immigration decisions. The Court of Appeal has endorsed the lawfulness of such an approach in the case of MF (Nigeria).

The courts have a clear and proper constitutional role in reviewing the proportionality of measures passed by Parliament and of the executive decisions made under them, and must ultimately decide on what is a proportionate interference under Article 8. I should stress that Clause 14 does not seek to change this proper judicial function. However, it is right that the Secretary of State should expect the courts to give proper weight to the view endorsed by Parliament on how, broadly, public policy considerations are to be weighed against individual family and private life rights when assessing Article 8 in any individual case. The courts themselves have underlined the importance of the view of Parliament on such matters and have confirmed that they will defer to that view where it is known.

However, some judges have since given only limited deference to the new rules, and say that they represent only a weak form of parliamentary scrutiny. The Upper Tribunal has said that,

“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these”—

previous—

“decisions are binding ... and will be followed”.

I hope that I will not embarrass the noble and learned Lord, Lord Mackay of Drumadoon, by quoting him. He said in the case of MS v the Home Secretary in the Extra Division of the Inner House last year:

“The rules are not a statute but merely a statement by the executive of how it intends to exercise powers conferred by statute. Consequently the application of the rules in individual cases is potentially subject to judicial review. Nevertheless, the new rules have been debated in Parliament, which confers a certain degree of democratic approval. Moreover, they are instructions put forward by the minister in a democratically elected government who is charged by statute with the administration of the immigration system. To that extent, too, the rules can be said to result from democratic processes. These are factors which must be given some weight when a court considers the application of the rules, although they cannot be conclusive because the rules do not have the force of statute”.

By bringing forward Clause 14 we seek to invite Parliament to give the status of statute to the rules, which are set out substantially in the same terms as the Immigration Rules that your Lordships’ House debated in October 2012.

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[Lord Roberts of Llandudno]

It would not hurt that Englishman in any way at all. We would still allow people who speak only English to come into Wales, but we would allow those who do not speak English but who do speak Welsh or even Scottish Gaelic—we might have one or two from the highlands wanting to come to Wales—to come in. I urge the Minister, as a fellow Celt, who I know has the well-being of our communities at heart, to give a thought to this, although perhaps not in the wording of this particular amendment. Is there no way that we could allow those who do not speak English but who do speak Welsh, Scottish Gaelic or Ulster Gaelic to come along? I am sure that there is a way, and we can show the nations of Wales, Scotland and Northern Ireland that we still consider them brothers and partners in this United Kingdom.

[Baroness Smith of Basildon]

My Lords, I hesitate to engage in this Celtic discussion. I am half Scottish, which might help, and I recently visited Patagonia. All the people in the Welsh community I met there also spoke English, curiously, otherwise we would not have been able to communicate with them.

The amendments highlight something on which I need clarification. This is not the normal legal language that we see in legislation; it seems to be more a statement of fact or opinion. The noble and learned Lord, Lord Mackay, made a powerful point when he said that financial independence was not related to language. I am curious about the evidence base for the statement in the Bill. To be better integrated into society is easier to understand, but is being less of a burden on the taxpayer automatically the case? On what evidence did the Government base that before bringing it forward?

The provisions are confusing because this is not the usual legislative language that we see in Bills such as this. Is there any concern that the courts will not understand how to interpret the decisions that they are making? I am curious about what guidance the Government will provide relating to this specific part of new Section 117B(2).

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Mackay of Drumadoon, for this amendment and I thank my noble friend Lord Roberts for his spirited endorsement of it. I readily appreciate the concerns raised by the noble and learned Lord about the provision made by Clause 14 on the public interest in migrants being able to speak English and also in being largely independent. We believe that these are important elements of the provision made by Clause 14 as to the public interest in controlling immigration to safeguard the economic well-being of the United Kingdom under the qualified right to respect of private and family life under ECHR Article 8.

The noble Baroness, Lady Smith, said she thought that the language was not normal for legislation—it might actually be simpler in parts than in some legislation we have grappled with. The reason for that is one that I articulated when I set the scene. With Clause 14, we have basically sought to put in statute the Immigration Rules, which were debated and have been in place since 2012. In some places, the language is not in the usual statutory form because it has been substantially carried through from the Immigration Rules. That also answers the question of whether the courts will have difficulty interpreting it because of that. I do not believe that they should, because they have been interpreting these rules since the middle of 2012. The point is that they will now have, if Parliament so decides, the full force of statute rather than simply being rules. That also answers the point raised by the noble and learned Lord as to whether we had considered Welsh and Gaelic prior to bringing this clause forward. The answer is no, we did not, as this was being lifted from rules that were already there, which stipulated English.

As has been made clear, Amendments 34 and 35 propose allowing a migrant to rely on their ability to speak Welsh or Gaelic, instead of English, when applying for leave to enter or remain in the United Kingdom on Article 8 grounds. I want to make it very clear that I am not a Welsh or Gaelic speaker but that the Gaelic Language (Scotland) Act 2005, to which the noble and learned Lord referred, was brought forward by an Administration in which I was the Deputy First Minister. I do not think anyone can challenge my support for the Gaelic language. As my noble friend Lord Roberts knows, I have a strong affinity with my Celtic colleagues in Wales and have had very many enjoyable Welsh evenings at our party conferences, when the songs have been well sung in Welsh and English.

We believe that a command of English is essential in helping migrants integrate into the life of the UK as a whole and in improving their employment prospects. That is the case even if a migrant is living in a Welsh-speaking or Gaelic-speaking community. Indeed, the possible consequence of the amendments is that if someone were able to meet a test in Welsh, for example, along with all the other tests, they could get entry into the United Kingdom. Having done that, they might choose to not go anywhere near a small village in Carmarthen or Carnarvon but instead go to Newcastle upon Tyne, despite not really having a word of English.

We do not doubt that Welsh and Gaelic speakers would contribute to the economic well-being of the United Kingdom, but migrants to the UK should be able to speak English to a basic level when they apply to come or remain here. Speaking English is necessary to ensure that a migrant is able to integrate and play a full part in our society. The ability to speak English also reduces the burden on the taxpayer arising from the cost to public services of translating information or guidance into other languages. We do not believe that the inclusion of the Welsh and Gaelic languages in Clause 14 would support that objective. It would not reflect the public interest in reducing taxpayer burdens and promoting integration.

I also ask the House to consider some practical issues involved in making such provision. First, there is no infrastructure to support the testing of ability in these languages on a global basis, even I think in Patagonia —the noble Baroness may know whether we have a consulate there. Secondly, the demand is likely to be very low. There have been no requests for testing in Welsh or Gaelic as an alternative to English since the introduction in November 2010 of an English language requirement for spouses and partners applying to enter or remain in the UK. Thirdly, in view of the likely low demand, the setting up and maintenance of a secure and reliable global network of test providers would be unlikely to be commercially viable. If commercial providers were not willing to offer tests, it would fall to the Home Office to set up the required infrastructure in the United Kingdom and overseas. This would represent a significant and disproportionate cost to the taxpayer.

Amendment 36 seeks to amend the drafting of the integration aspect of the public interest in migrants being able to speak English. It clearly is in the public interest for a migrant seeking to enter or remain in the UK to be able to speak English. Parliament has already approved this for spouses and partners, for example as part of the family Immigration Rules. English language skills play an important part in a person’s successful integration into society and help migrants access employment opportunities and contribute to the wider society. However, although in some cases it may be true that migrants who can speak English are likely to be able to integrate, their ability to integrate does not rest solely on their ability to speak English. None the less, there can be no doubt that the ability to speak English will mean migrants are better able to integrate into British society. I therefore suggest that the intention here is better reflected in the current wording of Clause 14.

Amendment 37 seeks to remove the promotion of integration as a factor in the provision made by Clause 14 as to the public interest in migrants being financially independent in immigration cases which engage Article 8. Those who choose to establish their family life in the UK by sponsoring a non-EEA national partner and any dependent non-EEA national children to settle here should have the financial means to support themselves and their families for the long term without needing to rely on public funds. This safeguards the United Kingdom’s economic well-being by preventing burdens on the taxpayer. In addition, being financially independent also helps ensure that a migrant is able to integrate and play a full part in our society.

It is important, for example in facilitating community involvement, that migrants should be able to use local shops, local services and public transport in an ordinary, everyday way that is not inhibited by a lack of funds. The same applies to adult education resources, such as English language classes, for which a fee may be charged. This is consistent with available evidence on effective integration, which shows that the level of migrant household income is an important factor.

The OECD report, Settling In: OECD Indicators of Immigrant Integration 2012 has shown a clear connection between effective integration and the level of migrant household income. The report states that household income and wealth have been shown to be important for a broad range of socioeconomic outcomes, in areas as diverse as health, education and civic participation. The report also found that having insufficient income may hamper migrants’ ability to function as autonomous citizens, which may have consequences for social cohesion. The report underlines the importance of migrants having access to sufficient funds to enable them to participate in the life of their local community. Despite declaring that I support the promulgation of the Welsh and Gaelic languages, I think it would be inappropriate in this context, and in the light of these points I hope that the noble and learned Lord will agree to withdraw his amendment.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I have the misfortune to oppose these amendments and to take a different view, therefore, from that already indicated by earlier speakers. I welcome the general thrust of Clause 14.

It is hardly surprising that the Government are intent on clarifying as plainly as possible in primary legislation their policy with regard to Article 8 and the interests that Article 8 furthers. Initially they sought to do this by way of changes to the Immigration Rules back in June 2012 but the courts then said, correctly, in the judgment of the Upper Tribunal in a case called Izuazu:

“Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision”.

A little later the judgment quoted from a recognised work on constitutional and administrative law, as follows:

“An Act of Parliament has legal force which the courts are not willing to ascribe to other instruments which for one reason or another fall short of that pre-eminent status”.

It is not that the rules are vulnerable to legal challenge. As the noble Lord, Lord Pannick, rightly said, in a recent case the Master of the Rolls made it plain that the rules, for what they are worth, are perfectly lawful. But it is in these circumstances that the Government—to my mind, unsurprisingly—have chosen to translate their policy into primary legislation. Indeed, the Minister made this plain in his response to an earlier group of amendments.

In the past, courts have rather too often tended to thwart the attempts of the Government to control immigration and deport foreign criminals on the basis of Article 8 interests. On occasion, they have carried the reach of this article beyond even the lengths to which the Strasbourg court itself has gone, and that court is no mean exponent of the art of dynamic and creative interpretation of the convention. Indeed, I said as much in a dissenting judgment I gave in 2011 in the Supreme Court in a case called Aguilar Quila. In that case, in reliance on Article 8, my colleagues struck down as not proportionate to Article 8 interests an immigration rule designed to combat the evil of forced marriages. I concluded there that:

“Article 8 is a difficult provision which has already led to some highly contentious, not to say debateable, decisions. Upon that I am sure we would all agree. In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases”.

I do not say that the deportation even of foreign criminals is as sensitive a matter as preventing forced marriage but, undoubtedly, it is one that gives rise to wide public concern.

I am strongly in favour of the United Kingdom remaining fully committed to the European Convention on Human Rights—and the Human Rights Act, which gives effect to it domestically. However, I can think of nothing more calculated to induce government to conclude that the nation’s better interests may in fact be served by abandoning our convention commitments than the continual frustration of government policy by an overenthusiastic interpretation and application of the convention, not least Article 8.

The amendments proposed here, particularly those of my noble and learned friend Lord Hope, for whom I have the utmost respect, and my noble friend Lord Pannick, eliminate from the face of the provision the relevance of foreign prospective deportees, and criminals in particular, having been here unlawfully or with only a precarious immigration status when their private lives or relationships were established. The Joint Committee’s recent report very helpfully looked afresh at this provision. Even it did not suggest that these were irrelevant considerations. On the contrary, the particular amendments that the committee proposed at paragraph 111—not, if I may say so, that anybody has yet explicitly adopted them—recognise and acknowledge the relevance of these sorts of consideration. Logically it would follow in the specified circumstances when someone is here unlawfully or under a precarious immigration status that the court would give less weight to whatever private life and relationship interests they have managed to build up. Why therefore not say so? That is precisely what Clause 14 now does. I do not see any distinction—certainly no critical one—between giving interests built up “little weight” and giving them less weight.

Judges will continue to honour their oaths to decide cases independently and objectively. Their entitlement to do so is by no means removed by this clause. In so far as in any particular case the judge considers that absolute Article 8 obligations require that there be no removal of the person concerned, there is nothing in this legislation to drive a contrary decision. Judges can give effect—indeed are duty bound to do so—to that conclusion as to the requirements of Article 8. However, government are entitled—it is what they are doing here in primary legislation as plainly as may be—to set out what their policy is and what they regard as the critical considerations in play in these cases. In short, I see much to be said in favour of this clause and nothing substantial to be said against it.

A final word just on children: clearly the best interests of all children, not just qualifying children, remain a primary consideration in all cases. Qualifying children are a particular concept introduced in respect of the removal of foreign criminals. Surely it is not difficult to see why their situation is singled out for particular special treatment. I am agnostic and neutral on whether that consideration should be spelt out not only under Section 55 of the 2009 Act giving effect to the interests of all children under our international convention obligations but also in this particular provision. It may not be thought necessary but if it is, so be it. However, I support the clause as a whole.

[Baroness Smith of Basildon]

My Lords, as a non-lawyer, I always take some comfort when the lawyers disagree on an issue. I have already stated our position on Article 8. We consider it right for Parliament to set out how the qualified rights of Article 8—the right to private and family life—should be balanced. However, as I think I indicated previously, we share those concerns that some decisions have been taken where we would ask whether the qualifications to Article 8 had also been appropriately considered when assessing the right to private and family life. I would disagree with the noble Lord, Lord Pannick, on that point.

However, I share his anxieties about some of the rhetoric around this debate. I recall the Home Secretary telling the Conservative Party conference that one individual had had his leave to remain granted on the basis of his private life and his family relationship with his cat. That proved to be absolute nonsense and unfair. There is a duty on all of us when discussing this issue to be measured and fair and to ensure that our facts are correct on all occasions.

I would like to probe a couple of areas with the noble and learned Lord. This may be the first debate on this where equal numbers of lawyers and non-lawyers have taken part. The noble Lord, Lord Pannick, and my noble friend Lady Lister made points about the language of the clause. The Government raised the issue of the interpretation of the legislation. However, I do not know whether any other legislation uses the term or gives advice that “little weight” should be given. If there are problems about “little weight” in terms of definition, will there be any clarification from the Government around interpretation for those taking these decisions? We are introducing a concept that could create the same problems around interpretation. It is appropriate that Parliament should state for the benefit of judges how we expect the interpretation to take place if the language is not familiar to them. That appears to be a problem in such cases at present.

Justice and Security Bill [HL]

Baroness Smith of Basildon Excerpts

Tuesday 26th March 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I thank the Minister for his very detailed explanation of the amendments before us. In fact, he was able to talk about not just the amendments but some of the discussions that we had in Committee and on Report and about some of the background. I thought that at one point he might be challenging the noble Lord, Lord McNally, regarding his marathon speech during ping-pong of the Crime and Courts Bill, but fortunately he was not able to reach those dizzy heights.

I shall be fairly brief as I think that the Minister has covered many of the points and I suspect that your Lordships are more interested in some of the issues that we will be debating where there is not so much agreement as there is on these amendments. We welcome many of the amendments in this group. I am grateful to the Minister because the Government have obviously listened to many of the arguments made in Committee and on Report in your Lordships’ House and have brought forward amendments to recognise that.

As he will understand, I particularly welcome Amendments 32 to 37, which are identical to those that the Opposition introduced to place a power of veto on disclosure of information to the committee at the level of Secretary of State rather than Minister of State. I well remember the lengthy debates that we had in your Lordships’ House and I am glad that we were able to convince the Government that that was the right course of action. We are grateful.

I will raise one other issue in relation to the other amendments on which I should like the Minister to give me an assurance. In Committee and on Report, our position was that it was desirable for the committee to have full parliamentary privilege. At that time, we supported the view taken by my noble friend Lord Campbell-Savours that the only way to achieve that would be by establishing the ISC as a full Select Committee of Parliament, obviously with the additional safeguards necessary for a committee of that kind. That did not find favour with your Lordships’ House or with the Government. The view taken was that that was not the way to proceed as it was thought to be too difficult. Therefore, we welcome the steps that the Government have taken since that debate to provide greater protections in statute for the ISC along the lines of parliamentary privilege.

The Minister was very helpful in explaining Amendment 39, which grants witnesses, in relation to any evidence they give to the committee, statutory immunity from civil disciplinary proceedings and from criminal proceedings under certain circumstances where the disclosure has been made in good faith. That is hugely significant and we are grateful for that move forward. I am sure that the noble Lord remembers, as I do, the lengthy discussions that we had on this issue when the Bill was last before the House. However, is he able to provide greater clarity on the extent to which protection exists for other individuals involved in the proceedings of the ISC? If he does not have the answers today, I shall be happy for him to write to me. My understanding is that Members of Parliament are currently not protected by parliamentary privilege in relation to their work on the committee, and nor are the staff working on it in relation to the evidence held by the committee. Clearly, that is very important, as most of the evidence that the committee receives is likely to be covered by the Official Secrets Act as well as the Civil Service Code.

Can the Minister provide clarity on three further points? First, do the protections provided by Amendment 39 apply to witnesses who provide written evidence—for example, whistleblowers who provide evidence anonymously or in writing? Secondly, what protections are provided for the staff of the committee and the Members of Parliament serving on the committee? For example, if the ISC were passed anonymous information covered by the Official Secrets Act, would the ISC then be able to act on that information to investigate it or would the handling of the information cause its members and staff to be in breach of the Act? Finally, does the fact that these are statutory protections and not privilege mean that it would be possible for the Government or an employer to obtain an injunction preventing a witness appearing before the committee?

I do not raise those issues in any way as criticism. I repeat that we welcome the steps that the Government have taken towards the committee having greater parity with the powers and privileges of a full Select Committee. It would be helpful if the noble Lord could answer those points, although we broadly support the amendments and are grateful to him and to the Government for taking on board comments made by your Lordships and the Official Opposition in Committee and on Report.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Lord, Lord Butler, and the noble Baroness, Lady Smith of Basildon, for their broad welcome for the amendments. This House has played a sizeable role in the process leading to the amendments. I do apologise. I was not deliberately seeking to delay the proceedings of the House but I felt it was important that I reported back as I see this as a significant change and one in which this House has played a key role.

The noble Lord, Lord Butler, asked about operational circumstances. I can provide the reassurance that there is no intention to restrict the ISC’s receipt of information on operational matters. The amendment makes it clear that information can be provided at the ISC’s request as well as by agencies or departments on their own initiative. I hope that reassures the noble Lord. He also referred to resources and asked for comfort. I am not sure that any Minister can give comfort on resources at the present time but perhaps I can say that the Government acknowledge that the ISC will require an increase in resources to reflect its expanded oversight role. However, as he rightly pointed out, negotiations are current. I would not want to comment further on those but I hope the noble Lord finds that that is of some comfort. It is certainly a recognition by the Government of the new role for the ISC.

The noble Lord also asked about restrictions on the ISC publishing material. It is not the intention to restrict the ISC from publishing non-sensitive and non-classified information in press releases or open letters. As I said, any information that could be in an ISC report can be published by it on an informal basis as well. I hope that gives a clear indication that things are not being made more restrictive.

I have a note here that might address the issues raised by the noble Baroness, Lady Smith—if I can read the detail. On the due protection supplied to witnesses providing written evidence, the answer is yes. On questions two and three about the handling of leaked information or an injunction preventing a witness appearing, it says here that I will write on those matters. I have to say that I hope I can write slightly more clearly than this note, which is meant to provide me with information. It does say that I will write. Given the nature of the questions, I think the noble Baroness will understand that it is important that I do not mislead the House by trying to ad hoc or wing it. I will happily write to her and place a copy of the letter in the Library. I beg to move.

Justice and Security Bill [HL]

Baroness Smith of Basildon Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Pannick]

My Lords, one of the main concerns with Norwich Pharmacal provisions is the breadth of the definition of “sensitive information” contained in Clause 13(3). Amendment 73 would confine the scope of the relevant information to that which needs to be protected. I entirely accept that it may be appropriate to expand the drafting of Amendment 73, but I am quite sure that what we have at the moment in Clause 13(3) is far too broad. I hope that the Government will be able before the Bill is enacted to consider this matter again; I hope that the other place will give specific consideration to this issue. I beg to move.

[Baroness Smith of Basildon]

My Lords, I shall speak to our amendments on this clause, Amendments 69, 70, 71, 72 and 76. I do not wish to detain the House and I shall not press our amendments to a vote at this late stage, but there are some important issues of principle that I want to put on the record and to which I seek a response from the Minister. I hope that he can take some of the points away and consider the issues.

The purpose behind the amendments is to suggest an alternative definition for the “sensitive information” ouster of the court’s jurisdiction. The reality is that less information is being shared with the UK as a result of fears that the Norwich Pharmacal jurisdiction might mean that the UK Government were forced to disclose intelligence shared with us, thereby breaching the control principle. We have heard that from the reviewer of terrorism legislation, David Anderson, to whom the Minister referred, as well as from members of the ISC and the Government. I know that we have assurances from the US that we will never be denied life-saving intelligence, but I refer the House to the comments made on this issue in Committee by the noble Baroness, Lady Manningham-Buller, who said that that was no consolation to her, given the position that she has held. She went on:

“The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives”.—[Official Report, 23/7/12; col. 553.]

The question of whether a UK court would ever in practice authorise the disclosure of such information has been widely debated. I do not intend to go into that tonight, because I do not believe that that is the question now facing this House.

Rightly or wrongly, the flow of intelligence to the UK has been restricted—we understand and accept that. The two questions for the House are: should the UK respond in order to deal with the concerns of our intelligence partners and, if so, what is a proportionate response? The Opposition’s response to the first question is emphatically yes; it is on the second question that I think we would have a difference with the Government; namely, whether it is a proportionate response. We take the view that any restriction of intelligence to the UK is a serious problem and we would agree with David Anderson QC who said of Clause 13 that there was “an element of overkill”. The ouster proposed by the Government reaches far wider than simply the control principle. While we recognise—there is no question about this at all—that there is a need to ensure the absolute protection of information related to our national security, this clause goes wider.

We therefore propose to restrict the definition of “sensitive information” to cover material whose publication would represent a clear breach of the control principle. We would amend Clause 13(3)(b) and (c) to refer only to “foreign” intelligence and to where that intelligence is such that it would jeopardise our national security or strategic national interests.

When we proposed similar amendments in Committee, the Minister described the practicalities, as he did just a moment ago, as being “challenging” and referred to the difficulties of being able to define and separate the two. We took note of what the Minister had to say and, as a consequence, the limitations that we propose in these amendments would retain the ouster for all the examples to which he referred.

Correspondence commenting on control principle material would presumably be covered by amended paragraph (c), which would remain an ouster for information derived in whole or in part from information obtained from or held on behalf of foreign intelligence services. That would allow for either the part of the correspondence that referred to foreign intelligence to be prevented from disclosure, or the entire correspondence, if it solely referred to that intelligence and would represent a disclosure of that information. As I understand it, that is much the same way as the original PII for certain redacted paragraphs in the court’s judgment on the Mohamed case argued.

Justice and Security Bill [HL]

Baroness Smith of Basildon Excerpts

Monday 19th November 2012 Lords Chamber

[Lord Campbell-Savours]

I wonder if we might be told when we can expect to see this memorandum of understanding.

[Baroness Smith of Basildon]

My Lords, we have tabled Amendment 22, which replicates the one tabled in Committee by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Thomas of Gresford, and is very similar to one tabled by my noble friend Lord Campbell-Savours.

This amendment requires a memorandum of understanding that will further define the remit of the ISC and other elements of its functioning. We consider that this should be approved by Parliament. Throughout the debate we have been arguing for greater ties between the ISC and Parliament in order to underline its accountability to Parliament rather than the Executive. This is an important example of how we can assist in effecting such change.

If the ISC is ultimately accountable to Parliament, it seems right that Parliament should approve the MoU that governs the ISC’s relationship with the Government over and above that which is set out in the Bill. I am sure that we will replicate this debate next week in the Crime and Courts Bill about the framework document for the National Crime Agency. If something is outside the remit of what is in the legislation, it is very helpful to have sight of that and Parliament should have the opportunity to debate and approve it.

The Government have argued against the establishment of the ISC as a full Select Committee of Parliament. One of the arguments is that it is necessary to circumscribe in statute the rules under which the committee may operate. It seems justified and very reasonable that the MoU should be subject to greater scrutiny and formalisation by coming before the House and having formal parliamentary scrutiny and approval before it can be acted upon.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, legislation is often a process of distillation and this evening the House has distilled itself down to this particularly rich mixture.

The Government intend to use the memorandum of understanding to make a substantial contribution to central government’s intelligence and security activities. It will be subject to ISC oversight. It is our intention that the activities should include certain activities within the Ministry of Defence, the Office for Security and Counter-Terrorism in the Home Office and the central government intelligence machinery in the Cabinet Office, including the Joint Intelligence Organisation. The scope of the memorandum, therefore, is wider than the three core agencies.

As my noble friend Lord Henley said in response to an amendment from the Opposition on this same subject in Committee, it is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail which is not appropriate in primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may be engaged in other activities which would not properly fall within the remit of the ISC.

The House will know that things change over time—departments reorganise. Functions done in one department one year may be done in another the following year. The intelligence world is no different from any other part of government. A memorandum of understanding is flexible. It can be changed much more easily than primary legislation. It will enable the intention of the Government to be realised now and in the future.

The effect of the amendment spoken to by my noble friend Lady Hamwee would be that, instead of the ISC’s widened remit beyond the three agencies being defined precisely in a memorandum of understanding, it would be defined in primary legislation, which is not in the interests of a good definition of the ISC’s role and is less flexible as I have said.

The Government’s intention is that the memorandum of understanding will enable the ISC to oversee certain activities; for example, within the Ministry of Defence as I have described. A memorandum of understanding is the best place to make provision at this level of detail.

The effect of Amendment 22, as proposed by the noble Baroness, Lady Smith, would be that a memorandum of understanding agreed between the Prime Minister and the ISC for the purposes of Clause 2 would need to be approved by a resolution of each House of Parliament before it could take effect. The memorandum of understanding is an important document. It will define the activities of government in relation to intelligence or security matters, other than the activities of the agencies, which the ISC may oversee. It will also specify additional principles and provisions, other than the criteria specified in the Bill, with which the ISC’s consideration of operational matters must be consistent. It will also specify the arrangements by which the agencies and other government departments make information available to the ISC.

The Bill also provides that the memorandum of understanding may include other provisions about the ISC or its functions. It must be agreed between the Prime Minister and the ISC and can be altered or replaced at any time by agreement. It is therefore different from a parliamentary document.

While the ISC is dissolved on Dissolution of Parliament, the memorandum of understanding will continue in place during a succession of government until a new memorandum of understanding is agreed with the Prime Minister.

As is usual with a memorandum of understanding, there is no parliamentary approval procedure. While the memorandum of understanding will be an unclassified document which is published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and cannot therefore be made public. However, there is no restriction on the document laid before Parliament being debated in Parliament, and, indeed, one might expect on occasions for it to be so debated. Of course, the terms of the memorandum of understanding must be agreed with the ISC itself: a committee composed of parliamentarians that, as a result of the changes that we have been talking about, will be a committee of Parliament appointed by and accountable to Parliament. Requiring these parliamentarians to seek the approval of their parliamentary colleagues would be quite a restriction on the independence of that body.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, this amendment is in my name and that of the noble Marquess, Lord Lothian. I shall couple with it Amendment 23. I am grateful to the Opposition, who have given their support to these amendments. They relate to circumstances in which the ISC may consider operational matters. At the moment, these are defined in Clause 2(3), which states:

“The ISC may … consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that

(a) the matter—

(i) is not part of any ongoing intelligence or security operation, and

(ii) is of significant national interest, and

(b) the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

The problem is that that is too restrictive, but I want to make clear at the outset that the ISC does not aspire to consider current operational matters unless the Government have some particular reason for asking it to.

The reason why the wording is too restrictive is that at present there are three tests that have to be passed by an operational matter for the ISC to continue to consider it. The first is that it,

“is not part of any ongoing intelligence or security operation”.

The second is that it,

“is of significant national interest”.

The third test is that,

“the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

However, the preface to that is that the ISC and the Prime Minister must be satisfied that those conditions are met. That would curtail the present operations of the ISC considerably.

I shall cite one example. When the SIS operation in Libya went so badly wrong and it got into the newspapers, the first thing that happened, quite rightly, was that the chief of SIS wrote a letter to the committee to explain what had gone wrong. If the words of this provision were taken literally, he could have done that only if he had first cleared his lines with the Prime Minister. I could repeat lots of examples of matters where something appears in the press and the heads of the intelligence agencies then report to the ISC. However, the provision says that before any operational matter can be considered, the Prime Minister has to be satisfied that the three tests are passed. My first amendment would omit the words,

“the ISC and the Prime Minister are satisfied that”,

so that the provision would read, “The ISC may consider any particular operational matter but only so far as” the three tests were passed. In other words, it would remove the hurdle of satisfying the Prime Minister, which certainly does not apply at the moment. To have to satisfy the Prime Minister in each case would add a new and cumbersome bureaucratic procedure, which I doubt very much that the Prime Minister would welcome, let alone the ISC.

Doing that alone, however, is not sufficient, and that is where Amendment 23 comes in. That amendment says that the three tests would have to be passed before the ISC could consider an operational matter, and one of those tests would be that it was not part of any ongoing intelligence or security operation.

As I said, the ISC has no aspiration to consider an ongoing operation, unless the Government ask it to. It normally looks at operations retrospectively, but there are circumstances in which it suits the Government to ask the ISC to look at an ongoing operation, so Amendment 23, which my noble friend and I have tabled, states:

“The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to consideration of the matter or it is consistent with the memorandum of understanding”.

An example of where this was necessary was cited by the noble Lord, Lord King. When he was chairman of the committee, it was asked by the Home Secretary of the day to consider the Mitrokhin case. That was a circumstance in which it suited the Government to ask the ISC to consider that operational matter. It would be very quixotic if the ISC had to say to the Government, “Sorry, you may have asked us to look at this matter because it would help you, but I am afraid we’re not allowed to because there is an absolute ban on it in the Bill”.

The purpose of these two amendments is to give more flexibility to the Government about the circumstances in which the ISC may look at an operational matter. It is not the ISC’s wish, in normal circumstances, unless the Government want it to, to look at matters retrospectively. The purpose of this amendment is to increase the flexibility which has been removed by the current drafting of the Bill. I beg to move.

[Baroness Smith of Basildon]

As noble Lords will see from the Marshalled List, we have added our names to Amendments 18 and 23, as the noble Lord, Lord Butler, noted, and we have also tabled Amendment 24 in this group.

The noble Lord, Lord Butler, has proved a worthy proponent of his Amendment 18, which would return the procedure for determining whether a matter should be considered by the committee back to the status quo by removing the requirement for the committee to seek the approval of the Prime Minister before making any such decision. It seems absolutely clear that the committee is bound in statute to abide by the remit set out in Clause 2 and it should not have to seek the approval of the Prime Minister to determine that it had done so. I agree with the members of the ISC and the noble Lord, Lord Butler of Brockwell, who have argued that not only is this overly bureaucratic but it is a step backwards from the current position where the committee itself determines, on the basis of given criteria, whether a matter falls within its remit.

Amendment 23, to which we added our name, and Amendment 19, which was tabled by my noble friend Lord Campbell-Savours, address the same point, but in a slightly different way. The Bill reflects the status quo by incorporating operational matters, which the committee has been de facto undertaking for some time, into the formal remit of the ISC. However, it seems overly prescriptive for the Bill expressly to prohibit the committee from reviewing ongoing operational matters. All Members of your Lordships’ House fully accept that there are security issues to do with reviewing operations that are current and may risk compromising individuals involved. However, there may be rare cases where an operation carries on for a long time and, despite the risk being minimal, it is still considered current by the standards of the Bill. It seems much more reasonable to make a general stipulation against the review of ongoing operations but to allow the committee to review such matters in special circumstances if it has the express consent of the relevant Minister.

Opposition Amendment 24 is a repeat of that tabled by my noble friend Lord Campbell-Savours in Committee. It would require the ISC to consider a request by a Select Committee to review a certain matter related to the ISC’s remit as well as any request to provide the Select Committee with information. It should be clarified that under no circumstances would the amendment require the ISC to act on any such request from a Select Committee, for instance, to disclose sensitive information or that simply would prove to be unmanageable for the committee’s workload. It would be a request. However, fostering greater communication and collaboration of Select Committees in Parliament could be only a positive development for the ISC.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, this may be the last amendment that we consider this evening. I can move it very briefly indeed because I am very grateful to the noble and learned Lord, Lord Wallace, for putting his name to it and therefore take it that we are pushing at an open door. This amendment would remove the words “a draft of” in relation to the report submitted to the Prime Minister. The committee does not and never has submitted a draft of the report; it submits its report. The Prime Minister can then ask for certain redactions to be made before it is published. However, it is by no means provisional. I take it from the fact that the noble and learned Lord, Lord Wallace, has put his name to this amendment that the Government will accept the removal of the words “a draft of”.

[Baroness Smith of Basildon]

My Lords, since we are considering the last group of the evening, I confess to being envious of the noble Lord, Lord Butler. I have been in your Lordships’ House a relatively short time in comparison with him, but I have never had an amendment signed by both the Official Opposition and the Government. I congratulate him on that achievement.

There is not very much that I can say on this amendment that will not be said even better by others. However, I will say something regarding our Amendment 27. This is a revised version of an amendment which I tabled in Committee. This amendment would amend the grounds on which the Prime Minister may exclude matters from the annual reports. These are currently broadly defined in the Bill as that which the Prime Minister considers,

“would be prejudicial to the continued discharge of the functions of the Security Service”.

It goes on in that vein. We have argued that the primary reason for the Prime Minister to request the redaction of material contained within the annual report should be on the basis of national security, or that it risks a disclosure of sensitive information as defined in the Bill. Again, we have reservations that the reason given in Clause 3(4) is a bit of a catch-all provision which allows the Prime Minister to prohibit the publication of material perhaps considered too critical and which may damage the reputation of government agencies.

Of course, we acknowledge that there may be circumstances in which the Government will need to prevent the publication of material. That may not be only on the basis of national security or the sensitivity of information. It could also be where the information might threaten the UK’s economic interests. However, it would be better to make such additional criteria transparent and accountable, in order to prevent any misrepresentation of the role of the Intelligence and Security Committee. Amendment 27 allows the Prime Minister to prohibit publication on grounds in addition to national security and the sensitivity of information, along the lines defined in the Bill, but also requires that the scope of the information must be set out in the MoU with the Intelligence and Security Committee. It is a moderate and reasonable amendment and I hope that the Minister will give it his consideration.

[Lord Taylor of Holbeach]

My Lords, I am delighted that the noble Lord, Lord Butler of Brockwell, moved his amendment. It received support from around the House and I am pleased to say that the Government are in a position to accept it. In Committee, the noble Lord, Lord Butler, and my noble friend Lord Lothian made the important point that the committee should be independent. I agree wholeheartedly. It will submit its report, not a draft of its report, to the Prime Minister, who may insist on redactions to the document but may not insist on any other changes. Again, I agree with this, so we are happy to accept the amendment.

Amendment 27 would have the effect of changing the grounds on which the Prime Minister might exclude any matter from a report to Parliament. It would add to the grounds for exclusion already described so that material might be excluded if it were of such a nature that it would be prejudicial to the continued discharge of the functions of the security service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities that fall within Section 2(2); if it were sensitive information as defined in paragraph 4 of Schedule 1; or if it were information that, in the interests of national security, should not be disclosed. For convenience, I will refer to the three possible grounds for excluding material as the prejudice to functions ground, the sensitive information ground and the national security ground. The amendment would also require that matters considered to fall under the prejudice to functions ground—currently the only ground for excluding information from the Bill—should be set out in a memorandum of understanding.

The ISC must be able to report candidly to the Prime Minister on sensitive matters. Inevitably, it will not always be possible to publish the full content of its reports because of the nature of the material contained in them. I do not think that there is any dissent in the House from that position. It follows that there must be an ability to redact information before ISC reports are published or laid before Parliament. In Committee, and amendment was tabled by the noble Baroness, Lady Smith—to which she referred—which would have made the criteria for excluding material from the published report just the grounds of sensitive information and national security. The noble Lord, Lord Rosser, who is not in this place, explained that it was a probing amendment to try to find out why it was necessary to use the definition that was in the Bill rather than that in the amendment, which presented grounds similar to those in Schedule 1 for withholding information from the ISC. In the case of withholding material from the ISC, both grounds had to be fulfilled, whereas for these purposes material could be excluded from a report if either ground were fulfilled.

The sensitivity of information and national security grounds add nothing in substance. Material that falls within those grounds will necessarily also fall within the prejudice to functions grounds—unless in the case of sensitive information that is so historical or so widely known publicly that it is no longer sensitive, in which case there would be no real justification for excluding it from an ISC report to Parliament anyway.