Assisted Dying Bill [HL]
Lord Avebury Excerpts(9 years, 5 months ago)
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Lord Carlile of Berriew
My Lords, I beg to move the amendment standing in my name and in the names of the noble Lord, Lord Darzi, and the noble and right reverend Lord, Lord Harries of Pentregarth. In relation to pre-emption, Amendment 13A is part of this group, and will be moved by the noble Baroness, Lady Finlay of Llandaff. It has the effect of amending the term “registered medical practitioners” to “licensed medical practitioners”. I make it clear at the outset that I have no objection whatever to that amendment being made. Indeed, I regard it as a helpful amendment to my amendment, for a reason that I shall now give.
As I understand the situation, a registered medical practitioner could be any medical practitioner who is on the register. I suppose that that is stating the obvious, but that could include, for example, a medical practitioner who is retired but who has chosen for one reason or another to remain on the register. It could include a registered practitioner who has not laid hands on a patient for a very long time. A licensed medical practitioner is one who is shown in the General Medical Council’s relevant documents to hold a particular expertise or expertises that are current. I am sure that the noble Baroness, Lady Finlay, will explain that more expertly than me in a little time.
I regard this group of amendments as extremely important, because they come at the gateway to assistance with suicide and assistance with dying that is provided for in this Bill. The gateway is diagnosis; nobody can go through that gateway unless they have been diagnosed as terminally ill—and what terminally ill means is defined.
I cite table 1 on page 7 of the Oregon’s Death with Dignity Act Annual Report for 2013. Its figures show that the median patient-physician relationship prior to assisted suicide in Oregon in 2013 was 12 weeks. That means that for the 752 people in Oregon recorded as dying using the Death with Dignity Act, half knew their doctor for 12 weeks or less.
I make no complaint about these issues if we are to have this Bill as an Act, but what are the issues that the diagnosing doctor or doctors are to certify themselves as satisfied about? First, it is that the person concerned has an inevitably progressive condition. That is quite a serious medical diagnosis, as is plain, to be determined at the date of the diagnosis. Secondly, it is that it cannot be reversed by treatment. In Clause 2(2), it is stated:
“Treatment which only relieves the symptoms of an inevitably progressive condition temporarily is not to be regarded as treatment which can reverse that condition”.
That is a very complex provision. The medical determination of whether medication or other treatment “only relieves the symptoms” is far from simple. How is one to judge whether it “only relieves the symptoms” or whether it provides some form of remission which goes rather further than only relieving the symptoms?
Then there is the provision in Clause 2(1)(b) that the person,
“is reasonably expected to die within six months”.
There was a discussion on Radio 4 this morning about the meaning of an expectation that someone will die within six months. This to a great extent is not science in the sense that no doctor, save in the most extreme circumstances, can predict when a person will die. Whether a person is potentially on the cusp of being expected to die within or around six months is certainly not something that I understand has ever been scientifically researched in full. Indeed, I recall in a debate some years ago a most compelling and memorable speech given by the noble Baroness, Lady Symons of Vernham Dean, in which she described exactly a circumstance in which it was predicted that someone extremely close to her would die within a very short time, and the person is still alive today. So this is very inexact medical science, and it is asking a great deal of doctors to make that kind of diagnosis.
What are the characteristics that might make that kind of diagnosis reliable and reasonable? I am sorry; I referred to my mother earlier and I am now going to refer to my father, who was a general practitioner in Burnley, Lancashire. One of my treasured possessions, which sits by my desk at home, is his last visiting book for the last year he was in medical practice. I spent much of my very happy childhood being given sweets by dear old ladies whom he visited on his rounds; it was one of the things that made me go on his rounds with him in his Austin A30. I reminded myself of what he used to do by looking at the book this morning. First, he used to visit his patients. I do not believe that anyone in my family has had a house call from their general practitioner in the 21st century, but it used to be very common. As I refreshed my memory this morning, I saw that he used to place his rounds in two columns: one was the calls that had been taken by the surgery—people who were ill and wanted the doctor to call—and the other was what he used to call, perhaps slightly unattractively, his “chronics”. His “chronics” were patients he visited on a periodic or regular basis. Some of them became friends to him and he knew all about their lives. He knew about the progress of their illness and about their domestic circumstances. He knew whether their children cared for them or took any interest in them. He knew whether they were poor or affluent and was able to ensure in the terms of those days that whatever statutory care was available was provided. In other words, he and doctors like him had a relatively intimate knowledge of their patients. When he met them in the streets of that great east Lancashire town, he could never remember who they were but he could always remember exactly what was wrong with them and members of their families. It is a bit like we lawyers remembering cases without necessarily being able to remember the names of those cases.
I know that it is dangerous to be nostalgic about medicine although, if we look at the state of the health service today, perhaps nostalgia is decent evidence, but when we look at the relationships that such doctors have with their patients, it is undoubtedly the case that they have, and had, a body of knowledge on which to base their diagnosis. We are not talking about diagnosing measles. We are not even talking about diagnosing some extremely unpleasant diseases; we are talking about diagnosing if and when someone is going to die.
My view, and that of the noble Lords who have also signed this amendment, and, I hope, of many others, is that nobody should go through the gateway of this Bill unless they have been seen by medical practitioners—I respectfully suggest to your Lordships that it should be no fewer than two—with at least one of them having had relevant care of that patient for at least six months, so that they have been able to build up a knowledge of that patient. It is difficult to imagine somebody with a terminal illness who has not had a relationship of six months with a doctor unless they have been involved in a trauma that has happened very recently.
Lord Avebury (LD)
Would my noble friend consider the case of patients with mesothelioma—perhaps we might hear also from my noble friend Lord Alton on that issue later—a disease that develops rapidly and which is normally fatal in a period of less than 12 months? Is it not probable that a patient who suddenly develops mesothelioma will not have been seen by a doctor for the period that the noble Lord requests?
Lord Carlile of Berriew
My noble friend, for whom I have the utmost admiration and with whom I have worked on many issues, I am afraid misses the point of what I am saying. I know the work that the noble Lord, Lord Alton, who was referred to, has done on mesothelioma. I absolutely applaud that work and I will give way to him in just a second when I have finished this paragraph. What I have in mind is that in a situation like that there will be not only the specialist who may be treating an issue that has arisen recently but a general practitioner who has had that patient on their books for a considerable time, who will have records that they can look at which give them that knowledge, and who will have seen the patient in the past. What I am seeking is exactly the combination between a licensed medical practitioner—I accept that they should be licensed—who has had some experience of dealing with the patient and a specialist who may be treating the symptoms of the particular illness.
Assisted Dying Bill [HL]
Lord Avebury Excerpts(9 years, 11 months ago)
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Lord Avebury (LD)
As a Buddhist, I recognise that this Bill contravenes fundamental Buddhist beliefs in the inviolability of human life, but there is also the Buddhist principle of compassion, which I think applies in the extreme circumstances of distressing terminal illness. That, it seems to me, weighs heavily in consideration of this Bill and is partly what has persuaded me to support it. I believe that the same is true of many other people of strong religious faith, both Buddhists and Christians. They believe, as I do, that helping people who are suffering from distressing terminal illnesses outweighs the principle of inviolability of human life.
We also have in front of us, as has been mentioned, the DPP’s current guidelines on cases of “encouraging or assisting suicide”, which maintain that in certain circumstances a person should not be prosecuted for helping someone to die. We have the Supreme Court’s ruling, which has been referred to by several noble Lords, that the Bill should be given a Second Reading so that the issues it raises can be properly and thoroughly discussed, as was recommended by the Select Committee on the Bill of the noble Lord, Lord Joffe, as long ago as March 2006. I hope that the opponents of assisted dying will respect the Supreme Court’s clear message that safeguards and checks at the time of a person’s decision to end their life are better than our present system, under which any inquiry happens only after a person’s death.
There is also the opinion of a large number of people in this country—80% according to one poll—reflected by the Times, the Guardian, the Observer and the Evening Standard, that Parliament cannot duck responsibility for considering the plight of terminally ill patients whose suffering cannot be relieved by palliative care in the final weeks of their lives. I recognise that palliative care is effective in the large majority of cases of terminally ill patients, but it is not effective in all. There are still many for whom the final weeks are ones of severe pain or distress, and that is why many patients look towards the end of their lives with dread.
Like many of your Lordships, I have had letters from patients who are in constant, severe pain which treatment cannot remedy. It is a great source of worry to them that, in the last six months of their lives, they may be forced to live in terrible pain and discomfort. Others write to me about relatives who died recently from inoperable brain tumours, for example, but not before they had been forced to suffer several weeks of intense physical and existential pain before finally achieving unconsciousness. There is plenty of evidence to show that modern drugs and care are not always able to control or alleviate pain at the end of life.
I declare an interest. In June 2011, I was diagnosed with myelofibrosis, a rare form of blood cancer, which can be cured in fit patients only by stem cell transplants. For patients older than 70 with poor medical histories, stem cell transplants are not recommended. The prognosis is that either the bone marrow turns to fibre and blood cells are manufactured in the spleen which becomes enlarged, or, in some cases, MF can transform to acute myeloid leukaemia, a serious blood and bone marrow cancer, which progresses quickly. These are unattractive prospects to look forward to in the last weeks of my life. I would expect that, in agreeing to this Second Reading, your Lordships would give the tens of thousands of people diagnosed with conditions that may similarly lead to weeks of torture before they die the means of escape from that unnecessary fate.
Crime and Courts Bill [HL]
Lord Avebury Excerpts(11 years, 2 months ago)
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Lord Avebury
Before my noble friend sits down, perhaps he could help me on material that is published in the cloud. He went into very helpful detail on blogs, but material can be aggregated in the cloud in specific folders. Can the Minister say whether that is exempt in the same way that blogs are?
Lord McNally
I am not as au fait as the noble Lord and I have only just come to terms with clouds and things like that. What exactly is his concern?
Lord Avebury
Would material which is aggregated in a cloud folder with something such as Dropbox, where you can put a number of different items which may be news or other kinds of material, be exempt in the same way that blogs are?
Lord McNally
I am reliably informed, post haste, that such aggregates in clouds are not covered. If by any chance that is not true I will write to the noble Lord and make sure the letter is circulated to the House. I cannot see over my shoulder but I sincerely hope that the Box is currently nodding firmly.
Crime and Courts Bill [HL]
Lord Avebury Excerpts(11 years, 6 months ago)
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Lord Avebury
“Immigration appeals: asylum and humanitarian protection
(1) Section 83 of the Nationality, Immigration and Asylum Act 2002 is amended as follows.
(2) In subsection (1)(b) omit the words “Kingdom” to the end and insert “, and—
(a) the leave has been granted for a period exceeding one year (or periods exceeding one year in aggregate); or(b) the person is under 18 years of age at the time of the grant of leave; or(c) there are reasonable grounds to believe that the person is a victim of human trafficking.”
Lord Avebury
My Lords, this amendment provides that an appeal against a refusal of asylum by someone who has been granted leave to enter for a year or less can be exercised by a child or trafficked person. On Report a similar amendment to remove restriction in all cases was considered. The Minister complained that this was too wide, because it would have afforded a right of appeal to people other than children and trafficked persons. I have therefore confined this amendment to those classes of persons in the hope that a more restricted version of the amendment may prove acceptable to the Government.
Children and trafficked persons who are refugees are entitled to recognition as such, and to enjoy the rights and entitlements of refugees, including for example higher education at home student rates, a travel document and family reunion, and obviously to the security that that recognition brings. The law should not take them to the brink of removal before they can assert their rights to recognition. The Minister suggested that the delay imposed on these children’s applications for asylum was not unreasonable because they were close to adulthood. Actually, time and again the courts have ruled that adulthood is not a moment of sudden transition at which the risks to which children are exposed suddenly disappear. Lord Justice Maurice Kay summarised the authority in a recent case, KA (Afghanistan), when he stated that,
“it does not matter that the appellants are now over 18 because ‘there is no temporal bright line across which the risks to and the needs of the child suddenly disappear’. The line of authority which is said to support this analysis includes”—
and here the judge rattled off a list which I will not bore your Lordships by repeating.
My noble friend kindly wrote to me on 20 November, saying that the amendment would lead to costly multiple appeals. This is, in fact, not the case. Those who appeal and are recognised as refugees will obviously not need a further appeal. The only persons who would have more than one appeal are those whose applications are rejected, who then lose the appeal against refusal, and who the Home Office decides to remove. They would then have a right of appeal against removal, as would anyone else facing that decision. The appeal would, no doubt, rest to a large extent on evidence from the earlier appeal on both sides, and therefore the costs are not likely to be large.
I am not sure where my noble friend gets his idea of multiple fruitless appeals from, and his suggestion that my original amendment would have resulted in significant cost to the taxpayer was not accurate. This amendment is even less open to that criticism, and the limited costs that it entails must be set against the failure to respect the rights of refugees who are denied protection for a year. I ask my noble friend whether the Government have sought the views of the UNHCR on this matter and, if not, whether they will do so and circulate the answer in time for those views to be considered when the Bill is debated in another place.
When the Government ratified the Council of Europe Convention on Action against Trafficking in Human Beings, the Immigration Law Practitioners’ Association tried to persuade them to grant trafficked persons leave to remain for a year and a day in order to avoid this problem. The request was refused, and if the Home Office was concerned that it would have meant a handful of people aged 16 years and nine months getting three months’ more leave than they would otherwise have done, the amendment offers an alternative, whereby the Home Office can grant the period of leave that it chooses but an appeal against refusal of asylum can still take place.
I turn to the second amendment in the group. There were some misunderstandings in the debate on this proposed new clause on Report, and it is in the hope of clearing them up that I ask your Lordships to spend a moment or two once again considering an amendment similar to one I moved previously, which recognises the true circumstances in which the clause is intended to be used. The Minister said that,
“it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem”.—[Official Report, 12/12/12; col. 1103.]
He was speculating, but what he described is contrary to stated Home Office policy. I am reliably informed that this policy is to wait until a person is outside the country to deprive them of leave to remain. This has been repeatedly confirmed in meetings with the Immigration Law Practitioners’ Association and, indeed, at the semi-public ILPA annual general meeting, which was attended by some 100 members on 27 November 2010. On that occasion, the statement was made by Tony Dalton MBE, then assistant director and chief case worker at the nationality and European casework department of the UKBA. ILPA tells me that it is not aware of any case in which some intervening act has prompted the deprivation. That is not to say that it has never happened, but it is certainly not the norm. In many cases, the deprivation notice is served immediately after the person has left the country. There is simply no time for new evidence to come to light or for the person to have done anything that would make him subject to the notice.
ILPA dealt in detail with this in its evidence to the Joint Committee on Human Rights inquiry into extradition policy in January 2011. Subsequent to that, there was the decision of Mr Justice Mitting, sitting in the Special Immigration Appeals Commission in the case of L1, where the matter at stake was deprivation of citizenship. In paragraph 12(i) of his ruling, the judge said:
“The Secretary of State’s decision to deprive the Appellant of his citizenship was one which had clearly been contemplated before it was taken. The natural inference, which we draw, from the events described, is that she waited until he had left the United Kingdom before setting the process in train”.
The Minister may also have unintentionally misled the House when he said in reply to the noble and learned Lord, Lord Woolf—also in column 1103—that exclusion while a person is out of the country has been part of the immigration process for a substantial period. It was indeed at one time, until it was declared unlawful on 16 January 2012 as a matter of statutory construction in the case of MK, as discussed in the Immigration Law Practitioners’ Association’s evidence on extradition to the Joint Committee on Human Rights. If it is done at the moment then the law is being broken.
Lord Avebury
My Lords, I am most grateful for the renewed support of the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Earl, Lord Listowel, and the noble Baroness, Lady Smith of Basildon. What they have said demonstrates that there is still serious concern across the Floor of the House with regard to both these amendments, particularly in the case of the noble Earl, Lord Listowel, on the rights of the child, which are being jeopardised by the current system. There is a serious question as to whether the system we have now is compatible with our signature to the UN Convention on the Rights of the Child. However, both that and concerns about the right of appeal only from abroad may have to wait for further consideration in another place, where I hope that these issues will be picked up. I honestly do not think that my noble friend, although he has tried hard, has given us satisfactory answers to many of the points that have been raised. I mention in particular whether the Home Office has a policy of lying in wait. I cited the detailed evidence which has been—
Lord Taylor of Holbeach
I am sorry but I did make it patently clear that there is no policy of waiting for people to leave the country before taking these proceedings. That is a matter of fact. I did answer the question.
Lord Avebury
I know that my noble friend said that, but he did not respond to the point I made about the evidence which has been provided for us by the Immigration Law Practitioners’ Association. It says that in many cases the notice is served the day after a person has left the country and that the policy was acknowledged by a senior UKBA official when the matter was addressed at the ILPA AGM in front of 100 people in November 2010. My noble friend did not deny that that evidence existed, nor did he attempt to refute it. If he had said that in the cases where a person’s presence was deemed to be “non-conducive to the public good” the Home Office would not wait until somebody went abroad for a short period, I would have been far happier. The case that he described—where someone is known to be departing from the United Kingdom with the intention of plotting with like-minded individuals abroad to commit or plan further offences against our laws—is, again, hypothetical, but the existence of the suspicions could have enabled the Secretary of State to serve that person with a notice before he left the country. Therefore, there was an element of premeditation in the way that the Secretary of State exercised her powers in the particular case that my noble friend described.
I do not think that we are going to get any further with this matter this afternoon. I shall have to leave it for our colleagues in another place to renew the discussions on both these amendments, as I hope they will. In the mean time, I beg leave to withdraw the amendment.
Crime and Courts Bill [HL]
Lord Avebury Excerpts(11 years, 6 months ago)
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Lord Avebury
“Immigration appeals: asylum and humanitarian protection
(1) The Nationality, Immigration and Asylum Act 2002 is amended as follows.
(2) In section 83(1)(b) omit the words “Kingdom” to the end.”
Lord Avebury
My Lords, the new clause proposed by the first amendment in this group would remove the restriction whereby an appeal against the refusal of asylum can be brought only where the person has been granted leave to enter or remain for more than 12 months. Noble Lords will be aware that unaccompanied children who are refused asylum are granted humanitarian protection or discretionary leave for periods of three years or until they reach the age of 17, whichever is the shorter, on the basis that they cannot be sent back to their country of origin. Bearing in mind that the UKBA takes months and sometimes years to decide whether to grant humanitarian protection in lieu of asylum, the child might arrive at the age of 15 or even earlier, might be refused asylum at the age of 16 and might still have to apply for discretionary leave to remain for a period that would make the total more than 12 months before appealing against the refusal.
I take it that there are very few refusals of the extension of discretionary leave, as almost all unaccompanied asylum-seeking children will have had no contact with family in their country of origin and therefore will still be ineligible for return when they reach the age of 17. The effect of the provision in the 2002 Act is to delay the permanent settlement of these children in the UK, making it harder for them to access the whole range of public services, including further and higher education, so that their economic and social potential is less than it would be if and ultimately when they become permanent residents of this country.
My noble kinsman said on 4 July 2012, in col. 710, that it was an “unfortunate consequence” of the otherwise very sensible 12-month restriction. He gave an assurance that the policy as it affects children would be reviewed. I was looking forward to hearing the outcome of that review at this stage of the Bill. It seemed to me that the Bill could only confirm the unfortunate consequences, as my noble kinsman called them, and that the Government would explain how they would eliminate them. Instead, my noble friend Lord Taylor told me in a letter of 20 November:
“We have considered this matter very carefully and have concluded that no change in current practice is appropriate”.
He stated, quite inaccurately, as I see it, that the,
“amendment would undermine the intention of the existing appeals framework, namely, to prevent multiple appeals that result in significant cost to the taxpayer”.
Those who are recognised as refugees will not need any second appeal, but the children and trafficked persons in question will get no appeal at all until they face removal—something that, had their case been decided correctly at the outset, they would never have faced. My noble friend says that the young persons affected by Clause 83(1),
“are on the cusp of adulthood, and … the detrimental impact of any delay in an appeal right arising is less severe than it would be for children of a younger age”.
I think the opposite is true, because younger children tend to accept the situations they face as a result of adult decisions, but as they approach maturity they can recognise deliberate unfairness inflicted on them by authority. I would like to know whether my noble friend sought the advice of experts such as the Children’s Society before he expressed that opinion or whether it was ex cathedra.
Does his review cover trafficked persons, who are granted leave for one year following a determination through the national referral mechanism set up by the Government to identify and support victims of trafficking in the UK? That process was established in pursuance of the Government’s obligation to identify victims under the Council of Europe Convention on Action against Human Trafficking. Article 14 of the convention provides that a victim of trafficking shall be granted a residence permit, which will be without prejudice to the right to seek and enjoy asylum. That seems to imply that the 12-month residence permit granted to trafficked persons would not debar them from submitting an asylum claim. I look forward to hearing from the Minister how this can be squared with Section 83(1).
I turn to the second of the new clauses. The purpose is to remove the statutory presumption that a country other than a person’s country of nationality is a safe country to which a person seeking asylum can be removed simply because the Secretary of State asserts that it is a safe country. A safe country is one where the person will not be persecuted and from which he or she will not be refouled in contravention of the refugee convention or the European Convention on Human Rights.
Section 94 of the Nationality, Immigration and Asylum Act 2002 establishes a scheme whereby persons seeking asylum may be precluded from a right of appeal against the refusal of asylum unless and until they have left the UK, including where this may mean returning to their home country or to a third country that the Secretary of State asserts to be safe. Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 limits what the asylum seeker can argue on a judicial review about the safety of the third country.
Section 94(8) creates a statutory presumption that, when the Secretary of State asserts that a country other than the person’s home country is safe, it is presumed that in that country the asylum seeker will not face persecution for a refugee convention reason and will not face being returned to a country in which he or she does face persecution for a refugee convention reason. The statutory presumption seeks to oust the jurisdiction of a court to consider the correctness of the Secretary of State’s opinion as to the safety of such a country.
The provisions of Schedule 3, which the new clause proposes to delete, require a court dealing with a judicial review relating to a removal to make presumptions of safety. For example, paragraph 3(2) states:
“A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place … where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion”.
In the case of NS, the claimant asylum-seeker had sought judicial review of his third country return to Greece. Whereas the Administrative Court in England and Wales had been concerned as to the conditions in Greece, it considered itself bound by previous authority to uphold the UK Border Agency decision to return NS to Greece. The Court of Appeal referred the matter to the Court of Justice of the European Union. That Court concluded, in the context of European Union arrangements for safe third country returns within the European Union, under what are often referred to as the Dublin Regulations, that,
“to require a conclusive presumption of compliance with fundamental rights … could be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. That would be the case, inter alia, with regard to a provision which laid down that certain States are ‘safe countries’ with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary”.
The presumptions in Section 94(8) and the paragraphs of Schedule 3 seek to be such provisions, and accordingly ought to be removed.
Greece is not the only safe country where these presumptions may be unfounded. Section 94 allows the Secretary of State to list not only countries that are safe, but countries that are safe for a given description of persons. Thus a number of African countries are designated as safe for men, so that women threatened with return to those countries still have an in-country right of appeal. However, lesbian, gay, bisexual and transsexual people, who suffer relentless cultural, social and even legal pressures and persecution in more or less the same list plus Jamaica, have no such right.
In the case of HJ (Iran) and HT (Cameroon), which was dealt with in the Supreme Court in 2010, the noble and learned Lord, Lord Hope, spoke about the,
“rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa”.
It was lucky for HT that he did not come from one of the countries designated as safe such as Malawi where, as the noble and learned Lord, Lord Hope, pointed out, two gay men who celebrated their engagement had recently been sentenced to 14 years in prison. If those men had sought asylum in the UK, their claim would have been treated as unfounded and they would have had no right of appeal. Curiously enough, two lesbians in the same circumstances would have had a right of appeal, since Malawi is treated as a safe country for men only in Section 94.
If the Government are not prepared to accept this amendment, the least they could do is to make the list in Section 94(4) correspond with the reality of persecution on account of sexual orientation as well as gender, which can be done by order. My noble kinsman replying to a similar amendment at Committee, claimed that an appeal after removal was a satisfactory remedy for those removed to a “safe country”. Could the Minister tell your Lordships how many people who were removed after claiming asylum from a supposedly safe country on the basis of their sexual orientation managed to appeal from abroad, and in how many of those cases they were successful? I know that the Government are very well aware of the widespread persecution of LGBT people, so I assume that they will have kept records of these cases, although I do not expect the Minister to be able to produce them on the spot.
I turn to the third new clause. The purpose is to ensure that an appeal is not treated as abandoned when leave to remain is granted to the appellant. The situation at the moment is that under the provisions sought to be left out of Section 104 of the 2002 Act, this happens automatically, and the result is that the tribunal is prevented from reaching judgments on points of principle that are dealt with in the case. It can happen that a series of cases, all turning on the same principle, are aborted by the Secretary of State in this way, contrary to the interests of justice.
In the case of Osman Omar, the judgment handed down on 29 November 2012 by Mr Justice Beatson addressed this issue. He resisted attempts by the Secretary of State to argue that the claim was redundant in that she had already granted the claimant further leave to remain. He ruled, in effect, that the Secretary of State cannot keep knocking cases out by settling them on the facts and refusing to litigate on the point of principle. As Mr Justice Beatson said:
“The substantive issue raised by the claimant is an issue which arises regularly. It arose in Francis. It will arise in the case of Ahmed ... which, as I have stated, is listed for hearing at the end of January 2013”.
Therefore, the challenge in these particular cases is to the vires of the regulations, which provide for a fee to be payable for an extension of discretionary leave, but with no discretion for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS support. I hope the Minister will agree that it is important for this question to be determined, and that in cases of this kind, it is common sense to leave the matter to the tribunal. I beg to move.
Lord Beecham
My Lords, I have a good deal of sympathy with the noble Lord’s first amendment, but am not perhaps quite as persuaded by the subsequent amendments. However, in any event I pay tribute to the noble Lord, Lord Avebury, for his consistent concern with the problems of a particularly vulnerable group in our society and his very powerful advocacy on their behalf. He has obviously seized the opportunity to bring that concern into this Bill. I object less to that spatchcocking than I did to the previous amendment moved by the Minister in relation to burglary, but perhaps it is not the best forum in which to take these matters forward. I hope that the Minister can go a little further than he appears to have done in correspondence with the noble Lord and at least indicate that this whole area should be reviewed. It is some time since we have had a proper debate around the particularly delicate issues to which the noble Lord referred. While it is probably the case that this is not a matter to be voted on today, it should not be neglected indefinitely and ought to be considered.
Perhaps the Minister could indicate that discussions, not in respect of Third Reading but more generally, could take place around these and allied issues in connection with asylum and immigration matters where they impinge on the presence or otherwise in our country of people who have fled persecution and danger elsewhere, in a context that is outside the legislative framework for the time being. That might be a way forward in which a broad consensus could be reached across the House rather than dealing with it in terms of the amendments that are before us today. Again, I pay tribute to the noble Lord for raising these matters. I hope that can be seen as a first step and not the last step in a process of looking at the issue.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I cannot promise my noble friend that the Government can be ahead on these issues but I am grateful for the opportunity to debate his amendments. I assure the noble Lord, Lord Beecham, that the Government keep the workings of the asylum process under review. Indeed, it would be wrong not to do so.
Amendment 113D would create a right of appeal whenever someone is refused asylum and granted any form of leave. As a result there would be more appeals against a refusal of asylum for a group of cases where no immediate right currently exists, and multiple appeals from individuals.
As my noble friend Lord Henley acknowledged in Committee, it is an unfortunate consequence of the otherwise very sensible 12-month restriction that some unaccompanied asylum-seeking children will experience delay in bringing an asylum appeal. My noble friend agreed to review the policy in respect of children to ensure that there were no unintendezd consequences. We have completed that review and concluded that this policy, seen in the context of the statutory appeals framework and current economic circumstances, operates as intended. As my noble friend has said, I have written to him to confirm this.
This amendment is to Section 83 of the Nationality, Immigration and Asylum Act 2002, which provides that an individual may appeal against an asylum refusal when leave is granted for a period longer than 12 months. Amendment 113D would remove the 12-month restriction and create a right of appeal against the refusal of asylum regardless of the period of leave granted. It is not unusual for short periods of leave to be extended more than once. Recent case law means that this amendment could create a right of appeal against the earlier refusal of asylum every time further leave was granted. Therefore, this amendment would have serious and undesirable consequences for the existing appeals framework as it could result in multiple fruitless appeals being used to prolong someone’s time in the UK. In the current economic circumstances, it is vital that resources are used where they are most needed. While I recognise that the intention of this amendment is to reduce delay for children and trafficked persons, the consequences for the appeals framework are not justified for the following reasons.
First, the amendment is too broad. It would extend the right of appeal under Section 83 of the 2002 Act to anyone granted leave after a refusal of asylum, not just children and trafficked persons. This would result in additional costs and resources to administer each appeal. Secondly, only a minority of unaccompanied children who claim asylum are affected by this policy in the way described by my noble friend. It would affect only those who are older than 16 and a half when refused asylum but granted some other form of leave. As we have said, these children are close to adulthood and have a right of appeal should a decision be taken to remove them after their leave runs out at age 17 and a half. This delay is not unreasonable.
Thirdly, while it is correct that trafficked persons are similarly affected, for similar reasons to those we have given in relation to children we believe that the current policy may be equitable in all the circumstances. Section 83 of the 2002 Act affects only those trafficked persons who claim and are refused asylum. It is important to remember that in all cases before a child or any trafficked person is removed from the UK, they will be entitled to a right of appeal. The Government’s policy ensures that individuals do not have multiple appeal rights over a brief period, possibly raising the same arguments on each occasion as matters may not have evolved since their last appeal. The amendment proposed would undermine this key principle of the Secretary of State’s asylum appeals framework. For the reasons set out above, we are not persuaded that the current policy for appeal rights under Section 83 of the 2002 Act, either for children or more generally, has an impact of the magnitude necessary to justify incurring additional expense in relation to appeals.
Amendment 113E concerns the Secretary of State’s powers to certify, under Section 94 of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach their human rights where the presumption is that the country to which the person is to be removed is safe. The effect of the certificate is that an appeal can be brought only after the person has been removed. This provision prevents appeals being used to delay removal in hopeless cases. Persons will be removed to a third country only if that country will not remove the person to another country other than in accordance with the refugee convention. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached.
Amendment 113E is tabled on the basis that Section 94(8) seeks to oust the jurisdiction of a court to consider the safety of the country of removal. It is, however, unnecessary. The courts are already able to consider whether the person’s human rights might be breached where judicial review challenges the issuing of the certificate. Once removed to the third country, an appeal may be brought and refugee convention issues can be considered. My noble friend asked for some detail here, and I will have to accept his very kind offer to allow me to write to him to give him a response to the data he was seeking.
Amendment 113E also seeks to remove those provisions in Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 that reduce the circumstances in which removal to a safe third country can be frustrated on the grounds of unmeritorious claims about treatment in, or removal from, those countries. The amendment would have a considerable practical impact on removals made to other European countries under the Dublin regulation. That regulation determines which state is responsible for examining an asylum claim. It plays a key role in tackling abuse of asylum systems through the phenomenon of “asylum shopping”. Indeed, the value of the Dublin regulation to the UK is clear. Since 2004, the UK has been able to remove more than 10,000 individuals under the Dublin regulation.
It is argued that the amendments are necessary to reflect the terms of the ruling of the Court of Justice of the European Union in the case of NS v Secretary of State for the Home Department, dated 21 December 2011. My noble friend referred to this case. The Government respectfully disagree. The ruling in NS gives useful guidance on the correct approach to fundamental rights as a matter of EU law. However, as a matter of practice, it does not significantly change the approach to domestic legislation. The concept of a rebuttable presumption in legislation when considering the impact of the Human Rights Act is not new. It was firmly established by existing case law from the European Court of Human Rights in KRS v UK in 2008 and from the House of Lords in Nasseri v Secretary of State for the Home Department in 2009. What the Luxembourg court has done in NS is confirm that a similar approach should be taken when it is alleged that there is evidence of the Charter of Fundamental Rights being breached.
I turn, finally, to Amendment 113F. The effect of this amendment would be to allow an appeal to proceed where the appellant has been granted leave by the Secretary of State. The purpose of many appeals is to overturn a decision to refuse to grant leave. Consequently, it is the Government’s position that in the majority of cases an appeal should not proceed where leave has been granted. Currently, Sections 104(4A) to 104(4C) of the Nationality, Immigration and Asylum Act 2002 provide that an appeal cannot proceed where the appellant has been granted leave. The exceptions are where the appeal is brought on the ground of race discrimination or where the appeal is against a refusal of asylum and the leave which has been granted is in excess of 12 months. This is consistent with Section 83 of the Nationality, Immigration and Asylum Act 2002, which was the subject of Amendment 113D. Where the appeal does not fall into these two groups, we do not believe it is necessary or appropriate for it to proceed where leave has been granted. The appeal is unnecessary because leave has already been granted. There is no detriment caused by the absence of a right of appeal which will be cured by this amendment. However, making this amendment would have a detrimental impact as additional rights of appeal would arise, each of which represents an additional cost to the Government and the taxpayer. The increased number of potential appeals will place an additional burden on the tribunal and court systems, which are already dealing with significant numbers of immigration appeals.
We do not believe that preserving an appeal right where leave has been granted is necessarily appropriate. Frequently, the Secretary of State makes a grant of leave while an appeal is pending for pragmatic reasons. This avoids unnecessary litigation at a cost to both parties. Where leave has been granted, an appeal can proceed only on an academic, rather than an individual, basis. The tribunal is primarily a fact-finding tribunal and therefore it is not appropriate for a case to proceed before it on an academic basis only. In light of these points, and in the knowledge that I will continue to work with my noble friend and respond to his questions on this issue, I would ask him to withdraw the amendment.
Lord Avebury
My Lords, I am most grateful to my noble friend the Minister for his thorough reply to these three amendments, although—as he would expect—I cannot say that I am entirely satisfied with his response. In the case of Amendment 113D, he did not go into the consequences of giving limited leave to remain to unaccompanied children and trafficked persons—a matter which I tried to outline in moving this amendment. There is room for further examination, and if he is prepared to let me have sight of the review that was undertaken, that would be the most helpful basis on which we might proceed.
As he will have realised, these amendments were all framed by the Immigration Law Practitioners’ Association and it, too, would like to be consulted in any review that will be undertaken in the future on the implications of the present situation for these unaccompanied children and trafficked persons granted limited leave to remain. My noble friend said that the amendment was too broad; we would be perfectly happy if, as a result of further discussions bringing in the legal advice of ILPA, we could agree on a more limited version of Amendment 113D.
With regard to Amendment 113E, removing someone to a supposedly safe third country does not eliminate the right of appeal, but if you have to exercise the appeal from an overseas country with all the disadvantages that that entails in the way of consulting lawyers, obtaining written statements and so on, the right is really not worth very much. The cases we considered mean that the designation of safe third countries is not a satisfactory way of proceeding, particularly when one considers the position of LGBT asylum seekers. I mentioned them in my remarks, but the Minister did not touch on them in his reply. I realise that I was asking for detailed information about what has happened to LGBT asylum seekers who were returned to supposedly safe countries. Maybe we can review the situation once we have that information in front of us.
On Amendment 113F, I mentioned the remarks of Mr Justice Beatson and thought that maybe my noble friend would not have had time to consider that judgment. Perhaps we can pursue the matter in more detail later. He did not respond to the point that, by granting leave to remain in a series of cases that touched on the same matter of principle, the Secretary of State was avoiding any resolution of the matter of principle, which would be helpful in cutting short proceedings of the tribunals in later cases. Therefore, I do not accept what my noble friend said about the saving of time in the courts; I think the reverse is probably true, but again, perhaps we can leave this for further discussion with the benefit of advice from ILPA at a later date. In the mean time, I beg leave to withdraw the amendment.
Crime and Courts Bill [HL]
Lord Avebury Excerpts(11 years, 6 months ago)
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Lord Ahmad of Wimbledon
My Lords, Amendments 106 and 107 will remove current restrictions to enable applications for judicial reviews in immigration, asylum and nationality cases, made either to the Court of Session in Scotland or the High Court of Northern Ireland, to be transferred to the Upper Tribunal.
As noble Lords may recall, the House has already considered this issue in relation to England and Wales in Committee when what is now Clause 20 was added to the Bill. I believe that it is fair to say that the Committee welcomed those provisions. Having discussed the matter further with the judiciary and the devolved Administrations in Northern Ireland and Scotland, we are now moving to replicate this provision across the United Kingdom.
The effect of these amendments would be to allow more judicial reviews on immigration, asylum and nationality matters to be heard by Upper Tribunal judges with specialist immigration knowledge and would free up judges in the Court of Session and the High Court in Northern Ireland to deal with other complex civil and criminal work.
Amendment 108 also aims to ensure consistency in the justice systems across the United Kingdom by reintroducing the second-tier appeals test for applications to the Court of Session to appeal against a decision of the Upper Tribunal. The rule of court which introduced this test in Scotland was found to be ultra vires in a decision of the Inner House and, as a result, the rule was revoked by the Lord President. The test requires that, in order for the Court of Session to grant permission to appeal, it should be satisfied that the proposed appeal raises an important point of principle or practice, or that there is some other compelling reason to hear the appeal.
My noble friend Lord Avebury has tabled two amendments seeking to limit or remove the second-tier appeal test in nationality and immigration cases. I do not wish to prejudge what my noble friend has to say and I will, of course, respond in due course, when we come to the next group. However, as Amendment 108 suggests, the Government fully support a second-tier appeals test throughout the United Kingdom.
In summary, the Government believe that where an appeal has been heard and determined by both the First-tier Tribunal and the Upper Tribunal, it seems entirely appropriate that the test to take the matter to a third judicial body should be high. Furthermore, the test is designed to manage effectively the flow of cases to the Court of Appeal and ensure that the court’s attention is focused on the most important cases.
As I have indicated, Amendments 106, 107 and 108 will ensure that there is a consistent framework across the United Kingdom and will remove the spectre of forum shopping between jurisdictions. I therefore beg to move.
Lord Avebury
My Lords, can my noble friend confirm that these provisions concerning Scotland will be the subject of a debate on a Sewel motion in the Scottish Parliament? Your Lordships may recall that when we debated the Bill that became the Borders, Citizen and Immigration Act 2009 in your Lordships' House, the Court of Session stated very clearly in its response to the government consultation, Immigration Appeals: Fair decisions, Faster justice, that it regarded the proposed transfer as premature. The Scottish Government had expressed similar concerns and had asked the UK Government not to proceed with the change at that time. I would be most grateful if my noble friend could respond to that point.
Lord Ahmad of Wimbledon
My Lords, Amendments 106 and 107 would not in themselves lead to any cases being transferred from the Court of Session or the High Court of Northern Ireland to the Upper Tribunal. It is simply an enabling power. In Scotland, an act of sederunt would need to be made by the Lord President, with the agreement of the Lord Chancellor, before any class of judicial reviews could be transferred from the Court of Session to the Upper Tribunal. The Court of Session will continue to have the discretion to transfer other applications for judicial reviews relating to reserved matters not specified in the act of sederunt by order.
I say to my noble friend that the same is true for Northern Ireland. Before the transfer of a class of judicial review cases from the Northern Ireland High Court to the Upper Tribunal, a direction would be made. As such, a legislative consent motion would not be required.
Lord Avebury
“Immigration and nationality appeals from the Upper Tribunal
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (right of appeal to court of appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”
Lord Avebury
My Lords, noble Lords will be relieved to hear that I am not going to repeat the arguments that were advanced when these proposed new clauses were debated in Committee. But I should remind noble Lords that the first new clause would remove altogether the additional and highly restrictive requirement to show an important point of principle, practice or some other compelling reason in immigration and nationality appeals generally from the Upper Tribunal to the Court of Appeal. The second new clause removes that requirement only where the grounds of appeal include refugee or human rights grounds.
My noble friend Lady Northover, who replied to the amendment in July, agreed that the class of cases that we are dealing with can be both complex and of the utmost importance. They deal with grave problems that deserve the anxious scrutiny of the court system. But she claimed that the second-tier appeals test provided just that.
However, I also observed that because of the increased rotation of judges under the Bill, inevitably there would be judges in the Upper Tribunal who would be less familiar with the complexities of immigration and asylum law. In the case of PR (Sri Lanka), which I mentioned on the last occasion, Lord Justice Carnwath said at paragraph 39:
“Parliament has thus provided a statutory framework within which the Senior President and Chamber President should be able to ensure that the gateway to appeals to that level is controlled by judges of appropriate status and experience”.
I fear that that may not always be the case.
In the same case, the Court of Appeal found against the argument that there was a compelling reason for allowing PR's application to appeal from the Upper Tribunal’s adverse decision. It was acknowledged that he had been tortured and that the Second-tier Tribunal had corrected an error of law on the part of the First-tier Tribunal. But the Court of Appeal concluded that:
“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as require the attention of the Court of Appeal”.
That reference was not picked up in our previous debate, nor did the Minister say anything about the Court of Appeal's remark that it would be wrong in principle for it to be constrained by ministerial assurances on asylum cases given in 2010.
There was also the point that because of the LASPO Act there would be more unrepresented appellants in the Upper Tribunal, which has already been mentioned on a previous debate. One cannot help feeling that the real reason the Government have got to this point is concern that the rights of immigrants and asylum-seekers, never a popular minority, are being subordinated to the need to ration scarce judicial resources. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, put it, and quoted with approval in PR (Sri Lanka):
“The rule of law is weakened not strengthened if a disproportionate part of the court’s resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff”.
Personally, I cannot think of any more compelling circumstances than the risk that a person may be tortured. I am sorry if the Government do not agree with me. I beg to move.
Lord Ahmad of Wimbledon
My Lords, as my noble friend Lord Avebury has explained, his Amendments 108ZA and 108A also relate to the second-tier appeals test. These amendments seek to remove immigration and nationality appeals, or alternatively those relating to the Refugee Convention or the European Convention on Human Rights, from the scope of the second-tier appeals test. We debated similar proposals in Committee on 4 July.
As my noble friend Lady Northover said at that time, the Government fully appreciate the serious nature of these kinds of appeals, as do the courts. In fact, the immigration and asylum chambers in the First-tier Tribunal and Upper Tribunal were created expressly to deal with these matters and are composed of judges who are experts in this particular area. The Government remain satisfied that they provide the expert rigorous scrutiny that is required in appeals of this kind.
It is therefore the Government’s view that it is neither necessary nor desirable to make it easier for appeals to continue on to a third judicial hearing, unless there is a very good reason for doing so. The test which is applied at present is either that the proposed appeal would raise some important point of principle or practice, or that there is some other compelling reason for the relevant appellate court to hear the appeal.
Removing the test in these cases could see the Court of Appeal in receipt of a high volume of cases which would not have been granted permission under the second-tier appeals test and which may further slow down decisions on some of the most important cases heard there. The test allows judges to determine which cases have a compelling reason to reach the Court of Appeal, a situation which the Government are keen to see continue.
My noble friend also raised the issue that the Court of Appeal in PR (Sri Lanka) ruled that the second-tier appeals test did not allow permission to appeal for individuals facing torture or death on their return to their country of origin. The judgment in this particular case upheld the current system and the suitability of the Upper Tribunal to make decisions on matters of this nature. The judgment specifically states that:
“The two tiers of the Tribunal system are, and are plainly to be regarded as, competent to determine matters of this kind”.
It then goes on to say:
“In short, there is no case for contending that the nature of an asylum-seeker’s case which has failed twice in the Tribunal system is a compelling reason for giving permission for a further appeal”.
These cases have already been heard in the most appropriate part of the system and the second-tier appeals test allows sufficient discretion for judges to grant permission to appeal where they see that there is a compelling reason to do so.
My noble friend Lord Avebury is someone who I personally regard as a great champion of human rights and he is someone who has stood firm in ensuring that, where there is torture across the world, people who come to this country are fully protected. I totally align myself with the sentiments that he has expressed. However, the position of the Government is clear. Finally, I would add that the courts have been clear that there is no reason to believe that the United Kingdom would be in breach of any international obligation if appeals from the Upper Tribunal are available only under the second-tier appeals test.
I would therefore urge my noble friend to withdraw his amendment.
Lord Avebury
My Lords, I am most reluctant to withdraw the amendment, but I can see that at this point in the Bill it would be purposeless to press the matter to a Division. I can say only that I am really disappointed in the reply that I have had from my noble friend. I am sure that I am not going to be the only one to feel that emotion. I know that the Immigration Law Practitioners’ Association has submitted a detailed argument on this matter to the Government as well to your Lordships who are likely to take part in this debate. I do not feel that adequate justice has been done to the force of its arguments. But, as I say, I do not see any reason why I should press this to a Division this evening. I therefore beg leave to withdraw the amendment.
Crime and Courts Bill [HL]
Lord Avebury Excerpts(11 years, 11 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this amendment will remove restrictions contained in Section 31A of the Senior Courts Act 1981. It will enable applications for or permission to seek judicial review in immigration, asylum and nationality cases to be transferred from the High Court in England and Wales to the Upper Tribunal.
As noble Lords will be aware, this House has considered this issue before. In 2009, the House thought it appropriate to allow the High Court to transfer fresh claim judicial reviews to the Upper Tribunal. These are judicial reviews that relate to a refusal by the Home Secretary to treat further submissions as fresh asylum or human rights claims on the basis that they are not significantly different from the material previously considered. These cases have been heard in the Upper Tribunal since October 2011 and the process is working well. This amendment would potentially enable any class of immigration, asylum or nationality judicial review to be heard in the Upper Tribunal.
The further categories of cases that would be transferred to the Upper Tribunal would have to be set out in a direction, or directions, made by the Lord Chief Justice with the agreement of the Lord Chancellor under the provisions in the Constitutional Reform Act 2005. We envisage that the transfers will take place in a staged fashion to increase slowly the types of judicial review dealt with by the Upper Tribunal. The ability to transfer such cases would play an important role in improving access to justice. Immigration and asylum judicial review cases currently form a high proportion—around 70%—of the caseload in the administrative court. The total number of these cases has doubled in the past five years, with around 8,800 being received in 2011. Many of these cases are relatively straightforward. This volume of cases is unsustainable for the administrative court. It keeps High Court judges from other complex civil and criminal cases that they should be hearing. It has created a backlog and has added to waiting times for all public law cases heard by the administrative court.
I recently met the president of the Queen’s Bench Division and the president of the Upper Tribunal immigration and asylum chamber to discuss the progress that has been made in the Upper Tribunal since it was created in 2010. I am persuaded that it now represents the most appropriate venue for the majority of judicial reviews of this type. As the avenue for appeals against a decision of the First-tier Tribunal, the Upper Tribunal deals with thousands of appeals each year. Since acquiring this jurisdiction it has received nearly 200 fresh claim judicial reviews, which have been dealt with more quickly. Fresh claim cases are on average dealt with in seven weeks, compared to an average of 11 weeks for the administrative court. This has not been at the expense of quality. The judges who sit in the Upper Tribunal have a high level of expertise, particularly in relation to in-country conditions and human rights implications, and are regularly joined by judges of the administrative court.
The Upper Tribunal’s expertise in the field of asylum and country guidance cases has been recognised by the higher courts in the UK and the European Court of Human Rights. It is able to make well informed decisions that will deliver justice in these types of judicial review cases, in the same way as the High Court has done in the past. I beg to move.
Lord Avebury
My Lords, this amendment would allow judicial reviews of immigration and asylum cases and nationality matters to be transferred from the High Court, where judicial review is currently heard, to the Upper Tribunal, as my noble friend has explained. To many of your Lordships, this must feel like Groundhog Day. Parliament made clear its views on whether JRs should be transferred from the High Court into the tribunals once in 2007, during debate on what is now the Tribunals, Courts and Enforcement Act 2007, and again in 2009, during debates on what is now Section 53 of the Borders, Citizenship and Immigration Act 2009. It has said no and has said so powerfully. The arguments against the Upper Tribunal being entrusted with this responsibility still hold good.
The 2007 Act established a new regime, bringing together several tribunal jurisdictions into one structure comprising the First-tier Tribunal and the Upper Tribunal, or UT for short. The Act allowed for the transfer of certain JR applications from the High Court to the UT but, as a result of amendments made during its passage, excluded immigration and nationality JRs from the cases that could be transferred. Parliament returned to this matter, as my noble friend has reminded us, in 2009 during debates on the then Borders, Citizenship and Immigration Bill and again rejected a proposal that would permit the wholesale transfer of immigration and nationality JRs.
The compromise reached was that a JR concerned with a decision on a fresh claim for asylum—that is, one made after an earlier claim and any appeals against its refusal had finally been rejected—was made transferable. Since 2009, the once separate Asylum and Immigration Tribunal has been transferred into the two-tier structure, with an immigration and asylum chamber in the First-tier Tribunal and in the UT. Meanwhile, on a case-by-case basis, the High Court has transferred a few JRs against local authorities concerning the age of separated children seeking asylum to the UT where they have ended up in the immigration and asylum chamber. However, age-dispute JRs can be transferred because they are not decisions about immigration or nationality and are therefore not affected by the 2007 Act. These cases start in the administrative court, but can be transferred to the UT on a case-by-case basis. There have been only four reported cases to date.
Fresh-claim JRs are transferred as a class. There are no reported cases yet and only one case that the tribunal was to hear. The UT has no experience of hearing JR cases so there is no way of assessing whether it is likely to cope well or badly with them. Meanwhile, although there is power to transfer fresh-claim judicial reviews from the Outer House of the Court of Session in Scotland to the UT, that power has never been exercised. I can do no better than cite the comments of the late Lord Kingsland on Report on the Tribunals, Courts and Enforcement Bill. He said,
“first, the Government have broken their promise to your Lordships’ House not to introduce primary legislation permitting the transfer of judicial review matters in asylum and immigration cases until we have sufficient evidence that the system for judicial transfers in other classes of case are working well. Secondly, the Opposition and the noble Lord, Lord Thomas of Gresford, would be extremely unhappy to permit such transfers unless we were satisfied that the transferred AIT single-tier regime to the Upper and Lower Tribunals did indeed have the effect of leading to much fairer and more timely decisions, thus reducing substantially the overall number of judicial review cases … Thirdly, as I have indicated, judicial review is a crucial component in the struggle to protect the individual. Many of these cases raise issues, at best, of the freedom of the individual and, at worst, of torture and death. It is vital that it remains open to someone in such cases to have the application heard by a High Court judge”.—[Official Report, 1/4/09; cols. 1126-27.]
There is no such evidence yet. Powers to transfer JRs into the UT are being sought when it has done only a handful of age assessment cases and has not built up any track record whatever in dealing with fresh-claim JRs. High Court judges have sat in the UT, but there are also judges in that chamber who were adjudicators and special adjudicators of the former Immigration Appellate Authority and its successors. They have never heard cases outside the immigration and asylum tribunal jurisdiction, but the amendment would allow them to deal with JRs on which they have zero experience.
Speaking for the then Government in 2007, the noble Baroness, Lady Ashton of Upholland, accepted that JRs in immigration cases were particularly sensitive. The point was underlined by a forceful observation from the noble and learned Baroness, Lady Butler-Sloss, in Grand Committee in 2006. She said:
“I support my noble and learned friend Lord Lloyd of Berwick in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. It would be invidious for there not to be a judge of that rank dealing with it. I support my noble and learned friend very strongly”.—[Official Report, 13/12/06; col. GC 68.]
Then there was the noble and learned Lord, Lord Lloyd of Berwick, who said at Second Reading of the Borders, Citizenship and Immigration Bill:
“If the effect ... is that the administrative court would be bound to transfer judicial review applications in all immigration cases, I would be strongly opposed to it”.—[Official Report, 11/2/09; col. 1142.]
The then Minister, the noble Lord, Lord West, winding up that debate, said that,
“the senior judiciary are very supportive of the clause”—[Official Report, 11/2/09; col. 1211.]
that is, the clause providing for the transfer—which he said was shown by the responses of the President of the Queen’s Bench Division, the Master of the Rolls and the Senior President of Tribunals to the consultation on immigration appeals. However, the Master of the Rolls had merely indicated that he supported the views of the President of the Queen’s Bench, who in turn stated that proposals for transfer of JRs in general were welcome, but emphasised that:
“Some of them are plainly suited to the Administrative Court and should remain there”.
The Senior President of the Tribunals agreed with him. The Court of Session judges did not welcome the proposal. They said that,
“any decision as to a more general transfer of judicial review jurisdiction in this area—
immigration—
“should be made only once the Upper Tribunal has gained extensive experience of implementing its proposed remit”.
No such extensive experience has been gained. Others, including the Immigration Law Practitioners Association, the Constitutional and Administrative Law Bar Association, the Glasgow Immigration Practitioners’ Group, the Law Society, the Refugee Legal Centre, the Refugee Council and individual lawyers, have expressed views similar to those of the judges of the Court of Session.
Lord Woolf
As the noble Lord has made clear, there is a considerable history here. When he is referring to the bodies that have indicated their objections, could he help the House by indicating whether the objections are indeed to the present amendment or to an earlier one?
Lord Avebury
As I understand it, my Lords, these representations and views have been expressed by the bodies that I have mentioned in response to this particular legislation. I am relying particularly on the excellent briefing that we have received from ILPA, which quotes all those authorities.
The amendment would allow for the transfer of any immigration or nationality JR by decision of the High Court, the Northern Ireland High Court or the Court of Session in the individual case, and empower the Lord Chief Justice, with the agreement of the Lord Chancellor, to direct that all immigration and nationality JRs or any specific class of these JRs must be transferred. The temptation would be to exercise the powers in an effort to reduce the load on the higher courts, but the right solution is to improve the quality of decision-making so that there are fewer litigants seeking JRs. The number is likely to fall in any case because of the LASPO Act provision that legal aid is no longer available for ordinary immigration cases.
ILPA has set out constructive suggestions for reducing the number of JR applications and indeed the burden on the appeals system as a whole. In 2009, for instance, it requested that UKBA disclose information on the number of immigration and asylum JRs that are conceded by the agency or in which the agency has agreed to make a fresh decision without the need for the process to be seen all the way through. The agency told ILPA that it was too expensive to retrieve this information, but it gave some data on the very large number of immigration JRs that are withdrawn: 1,185 cases in 2006 and 1,532 in 2007. We do not have more recent figures but I hope that my noble friend will tell us what the latest figure is for 2011, to compare with a total of some 9,000 given by my noble friend Lord McNally in his letter to the chair of the JCHR on 12 June.
As was recognised in 2006-07, immigration and asylum JRs are particularly sensitive. It remains the case that the tribunal has not demonstrated the same ability to deal with UKBA’s conduct as a litigant as has the High Court. The agency’s failures to respond in a timely manner to directions from the tribunal to disclose relevant matters or adequately to plead its case are problems that continue to beset all too many cases.
I will not try the House’s patience by going through all ILPA’s suggestions, but there is one that I think will particularly appeal to your Lordships. The Home Office could address the many hundreds of Zimbabwean cases that have contributed substantially to the workload since 2005 by reviewing and, where appropriate, conceding. Many of these cases will include findings of fact justifying a grant of refugee status in the light of the country guidance determination in RN (Zimbabwe), which has just been held not to have been overturned in JG and CM (Zimbabwe), the text of which is awaited.
In conclusion, the reasons given in your Lordships’ debates in 2007 and 2009 for not transferring more JR cases to the UT—that immigration and asylum JRs were the most sensitive cases, and the new chambers’ handling of JRs required testing first—still hold good. The number of cases going to the High Court and Court of Appeal could be reduced by other means, and restricting access to the higher courts would merely encourage or allow for poor decision-making. Decisions of the Court of Appeal on appeals from the UT show that it continues to be the higher courts, rather than the UT, that call for the UK Border Agency to account for its conduct as a litigant.
Lord McNally
My Lords, I am very grateful to the noble Lord, Lord Beecham, for that indication of the Opposition’s support for this amendment. I gladly give him, and the noble Lord, Lord Avebury, an assurance that what we are doing will be kept under review in close consultation with the judiciary.
It is true that this matter was discussed in 2009, as the noble Lord, Lord Avebury, said, but we have now had three years’ experience of the workings of the Upper Tribunal in these areas and we have also had representations from the senior judiciary about how the present system is clogging up the High Court and bringing some of the pressures to which the noble and learned Lord, Lord Woolf, referred.
I have not taken lightly the decision to bring this back to the House. In a meeting, the president of the Queen’s Bench Division and the president of the Upper Tribunal convinced me of two things: first, that we would be taking some pressure off the High Court and High Court judges by doing this; and, secondly, that by moving these cases to the Upper Tribunal we would in no way diminish the quality of justice available. On the contrary, as the noble and learned Lord, Lord Woolf, indicated, a great deal of the expertise for judging these cases is in the Upper Tribunal.
I take the point that the noble Lord, Lord Avebury, made about the UK Border Agency’s withdrawals. There are varied reasons for cases being withdrawn but, coupled with other government reforms, we are getting a better system for dealing with these cases from the UKBA. The senior judiciary is broadly in favour of the amendment as a sensible solution to the backlogs in the High Court and an opportunity to transfer cases to the most appropriate part of the justice system. There has been strong judicial involvement in the discussions preparing for this amendment, and the judiciary is keen to ensure that it is successfully introduced. As the noble Lord, Lord Beecham, said, the Lord Chief Justice will be closely involved with the Lord Chancellor in gauging the pace of movement on this so that we get the twin benefits of faster, efficient, high-quality justice in immigration cases and some elbow room in the High Court to deal with the important cases that the noble and learned Lord, Lord Woolf, mentioned.
I hope the noble Lord, Lord Avebury, will be content to take those assurances and to accept that this decision has been taken on the basis of the experience of the past three years, which we believe is entirely favourable to the move that we are making. That is coupled with the assurance that we will keep the matter under review and will be in close contact and consultation with the senior judiciary to ensure that the move is completely in keeping with the access to good justice that is the aim of this amendment.
Lord Avebury
My Lords, can my noble friend answer the question I put to him about how many cases were withdrawn by the UKBA—to correspond with the figures I gave for 2006 and 2007? If a very large number are being withdrawn, and thus the UKBA is conceding that the original decision was wrong, surely that proves that there are other methods of reducing the pressure on the High Court rather than transferring all these cases to the tribunal.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Alton of Liverpool
I am happy to be in the company of another member of the awkward squad on this occasion; I was happy to be in the Division Lobby with the noble Lord, Lord Cormack, during earlier proceedings on this Bill. Although it has not been possible for us to achieve all of the things that we would have wished to achieve during the proceedings, it speaks well of your Lordships’ House that we were willing to send back to the House of Commons for the second time, on Monday, the provisions in the Bill which relate to men and women who have been exposed to asbestos and, as a result, have developed the fatal illness of mesothelioma.
Yesterday in another place, Mr Jonathan Djanogly, the Parliamentary Under-Secretary of State, moved an amendment in lieu of Amendment 31, which was agreed in the other place, as the noble Lord has told us, without Division. The amendment specifies that the mesothelioma provisions may not be brought into force until the Lord Chancellor has carried out a full review of their potential impact and has published a report on the conclusions of the review. The practical effect of this is that terminally ill victims will not have to surrender up to 25 per cent of the compensation which they have been awarded in success fees over and above the base fees which lawyers will already have received. There is now an opportunity to recast what many of us believe is, in any event—and the noble Lord, Lord Thomas, alluded to this during our proceedings earlier in the week—an immoral use of success fees in cases where causation is not in issue, as well as to devise a new scheme which the noble Lord, Lord Freud, told us on Monday is now being worked on by the Department for Work and Pensions.
Therefore, before we leave this matter I would like to ask the Minister—and during a conversation yesterday I was able to give him some notice of my intention to do this—if he would clarify one or two questions which arise from the Government’s announcement and the amendment in lieu. First, is the Minister able to assure us that there will be absolute synchronisation between the Ministry of Justice and the Department for Work and Pensions to ensure that the mesothelioma provisions in the Bill will not be implemented in advance of the new regime coming into force? Secondly, Mr Jonathan Djanogly told the House of Commons yesterday that the new proposals,
“could well require DWP legislation, in which case we would look to roll the ending of the provisions into the commencement of the DWP provisions”.—[Official Report, Commons, 24/4/12; col. 839.]
That would certainly be the best way to proceed; can the Minister tell us when he expects his noble friend Lord Freud to be able to make a statement on the shape of the new scheme and whether there will be formal consultation with victims’ groups and other interested parties before a Bill is introduced? Also, do we have any idea of a timetable for the proposed legislation?
Let us assume for a moment that such a scheme—which has proved elusive in the past—were not brought forward, and that the insurance industry simply decided to play fast and loose with the Government: what would the Government do in those circumstances? Would they simply rely on the outcome of the review which they have instigated, and if the internal Ministry of Justice review concluded that it wanted to proceed with the mesothelioma provisions which have now been suspended, can the Minister assure us that there would be robust parliamentary scrutiny and opportunities to contest such an outcome? Will formal commencement orders be required, for instance, before the now dormant mesothelioma provisions in the LASPO Bill can be put into effect? Would such orders be introduced by statutory instrument, and, if so, is it the case that they would not be subject to parliamentary debate? In those circumstances, can the Minister assure the House that the Government would find a way for both Houses to be able to return to this question? It would be a pretty unsatisfactory situation if we were unable to do that.
With regard to the review itself, will it be conducted entirely by Ministry of Justice officials? Will the Minister at least reflect upon the desirability of involving some independent voices—perhaps, at least, a representative of one of the asbestos victims’ groups? Will those conducting the review call witnesses, take evidence and have a record of proceedings—will it be transparent?
I will end by making two short observations. First, as I have said, I am extremely grateful to all noble Lords, and indeed honourable Members of another place, who have supported this amendment at every stage. In particular, I want to put on the record that the right honourable Member for Wythenshawe and Sale East, Mr Paul Goggins, and Tracey Crouch, Member of Parliament for Chatham and Aylesford, gave considerable help, across the political divide, to ensuring that the case there did not go by default. The cross-party concerns which were raised in this House and in another place, and which were followed through by votes in the Lobby, were crucial in persuading the Government to think again.
I also pay tribute to the indefatigable efforts of Mr Tony Whitston of the Greater Manchester Asbestos Victims Support Group, whom I met with the noble Lord, Lord Avebury, and Mr John Flanagan of the Merseyside Asbestos Victims Support Group, for keeping these issues before us. The information and case histories which they have provided have been focused, understandable and rooted in their own day-to-day experience of working with the victims of this killer disease. Their resolve and dignified approach do them, and those who they represent, great credit. I know how grateful they are to your Lordships for insisting that their case be heard.
Secondly, and rather topically, this outcome says something about the particular strength of your Lordships’ House. Like the Minister, I served in another place for 18 years before I stood down. When the Bill came to us, I was staggered to find—as the noble Lord mentioned at the beginning of his remarks—that the issue of mesothelioma, which has after all claimed the lives of 30,000 British people, had not been debated or scrutinised at any stage. I repeat the observation I made on Monday last, that that is a vivid example of the vicious use of guillotines and programme Motions. The revising role of this Chamber—carefully scrutinising legislation and assessing its impact—is a strength that should not be lightly dismissed.
Finally, in three days’ time it will be Workers’ Memorial Day, which commemorates those killed, injured or made ill through work—a day that is meant to highlight the importance of good health and safety in the workplace. Asbestos disease is often called “the widowmaker”. In 2010, asbestos-related diseases accounted for 93 per cent of all industrial injuries disablement benefit payments for respiratory disease. It is a wretched disease—a death sentence with fatal consequences. All over this country, men and women were exposed for decade after decade to toxic substances, mainly at work, which ruined their lives and cost many their lives. As well as those 30,000 who have already died in the United Kingdom from mesothelioma, an estimated 60,000 more are yet to lose their lives due to past exposure—the vast majority of which, of course, occurred at work. The victims of this disease sacrificed their health and often their lives while working to support their families and contributing to the wealth of this country.
Throughout our debates, I have argued that it is iniquitous that such people should have to surrender up to 25 per cent of the damages they have been awarded. Happily, the Government have been persuaded that there is no racket involved in these cases, no ambulance chasing, and no compensation culture. They are right to have thought again, and I welcome that. We all now wish them well in coming forward with a far better approach to dealing with such cases. Linked to that is a promise that we remain diligent in monitoring the progress that has been made.
Once again, I am appreciative to the House for the support and encouragement that it has given in pursuance of this important matter.
Lord Avebury
My Lords, I want to add only a few words about the outstanding role of the noble Lord, Lord Alton, in leading this campaign during the proceedings on the Bill over many weeks and months. I do not think that anybody else could have had the success that he has achieved, because he is one of the most assiduous Members of this place. If he likes the label given him by the noble Lord, Lord McNally, it is a title that he well deserves and which we would all be proud to wear.
I want to add only one question to those that have already been posed. In the review of the potential impact, will it be possible for asbestos victims and their relatives to make representations and be heard orally by those conducting the review? This is important, if I may say so, because some of the material provided to us by Tony Whitston was of great importance in deciding certain questions—in particular, whether or not people would be deterred from taking proceedings if the Bill had come into effect in its previous form. There was abundant written evidence from victims that if they knew that 25 per cent was going to be deducted from their damages, they or their bereaved relatives would not have bothered to go into the fray. It is important that that evidence is presented to the review.
Perhaps I may say, finally, how grateful we are to my noble friend Lord McNally, because he has listened carefully all the way through. In particular, as he mentioned earlier, he was willing to meet the noble Lord, Lord Alton, myself and others, and take carefully back to his department the arguments that we put. That meeting and the further meetings that the noble Lord, Lord Alton, had with him have been instrumental in enabling the Government to arrive at this welcome conclusion.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Avebury
My Lords, I join my noble friend Lord McNally in paying tribute to the noble Lord, Lord Alton, who has fought so tenaciously for the rights of mesothelioma victims and their bereaved families over many months and previously, before we got to these debates. I know that he has always espoused their rights and tried to do the best that he could for them. I also thank my noble friend Lord McNally for what he said about the Government’s intentions, the programme for settling cases without the necessity to go to court and the development of a scheme analogous to that which operates in the case of motor accidents where it is impossible to find the insurer. I welcome those moves but they are not in any way in conflict with what the noble Lord, Lord Alton, proposes in his amendment.
The arguments in favour of the amendment have been covered exhaustively in both Houses and I do not propose to repeat any of them now. I will say only that it is incomprehensible that, in the face of near unanimity on all sides among those who have spoken in those debates, the Government are still unwilling to give way. The argument that the amendment undermines the principle that in CFA cases the success fee and the ATE are to be paid by the winning claimant is destroyed by the concession that has been made on clinical negligence cases.
In moving to reject the amendment in another place, Mr Djanogly said that it was unnecessary because there was nothing in the Government’s proposals to prevent cases being taken or those affected receiving appropriate damages. If he had read the evidence that was provided by the Asbestos Victims Support Groups Forum UK, he would know that that was not true because many victims have said that they would not have brought cases if they had known that the success fees and ATE insurance would be deducted from the damages awarded. The Minister did not reply when asked directly by Kate Green whether he accepted that some cases would go unrepresented and unpursued.
Secondly, he trotted out the argument of inconsistency. Throughout these debates we have been perfectly clear in saying that we wanted to make an exception for the victims of what is universally acknowledged to be a particularly horrible disease that is invariably fatal, and the majority who voted for it were fully aware they were making an exception to the general pattern of CFA cases. The Minister then insinuated that the claims dealt with in the amendment were part of the compensation culture—an infamous suggestion when we are talking about people who are terminally ill. He went on to say that the Government were not persuaded that these cases were substantially different from other personal injury cases. I question whether he bothered to read our debates or has any knowledge of the ordeal that is experienced by mesothelioma sufferers in the final months of their lives. This is graphically described in the evidence submitted by the victims and relatives’ organisations, and known about directly by many past and present honourable Members from testimony that they received at their advice bureaux.
Finally, the Minister said that the Government were determined to bring down the cost of litigation. Let us be clear that, as my noble friend Lord McNally acknowledged, in this amendment we are talking about whether the claimant or the defendant pays the success fee. No cost to the taxpayer arises.
In another place, five Conservative honourable Members defied the Whip by voting for the mesothelioma amendment and several others abstained. It can be assumed that if it had been a free vote, the other place would have upheld the amendment and we would not be debating it today. It is only right that we should give them another opportunity to set aside the callous treatment that the Government have insisted on all along, and to substitute what we all know is the fair and compassionate answer.
Lord Morris of Aberavon
My Lords, I add my support to the noble Lord, Lord Alton. As constituency MPs, many of us saw cases to do with this very issue and the difficulties that some of our constituents had in establishing liability after years of contact. I added my name to the noble Lord’s original amendment and heard his speech then, which set out the case admirably. I congratulate him on continuing to expose such an injustice. At this late hour, all I wish to say is that my support continues and I hope that the noble Lord will succeed.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Baroness Eaton
My Lords, I speak in support of the children’s amendments moved and spoken to by the noble Baroness, Lady Grey-Thompson, and my noble friend Lord Cormack. I should like to add my thoughts on Lord Newton, who kindly supported the amendment. I know that we will all miss his integrity and compassion in all our debates, particularly around these sensitive subjects. I also thank the noble Lord, Lord McNally, because I and other noble Lords have had a number of conversations with him, and he has been most gracious in his dealings with us. However, I still find myself in the unhappy position of being unable to support the Government’s intention to remove the clear and straightforward right to legal advice for children under 18 generally, and for all children who are injured in clinical negligence cases.
The Bill as it stands draws a distinction between, on the one hand, any child who suffers brain damage as a result of medical negligence before the age of nine weeks, and, on the other, any child suffering injury of any other kind caused by medical negligence—including a child who suffers from brain damage when they are nine weeks and one day old. Let me tell noble Lords about a Plymouth boy who suffered brain damage at the age of one when doctors at the Frenchay Hospital in Bristol failed to follow up a suspected aneurysm. Months later, he suffered a devastating bleed in his brain, which would have been avoided if the correct procedure had been followed. The boy will require care for the rest of his life; he cannot talk and will never be able to work. A settlement with North Bristol NHS Trust at the High Court in November 2011 will help to provide care for the rest of the boy’s life. He is now 10. The case could not have been started without legal aid, which would not be available if the Bill were to pass unamended.
I simply do not see how children who have been injured in these often heartbreaking circumstances can be divided into two groups in this way. We would allow legal aid for a baby suffering brain damage at birth, but deny legal aid to a baby suffering brain damage in hospital at the age of one. Or we would prevent a child who has been paralysed from seeking help. Just imagine two babies at two weeks old in the same hospital. One is brain damaged and the parents can seek support on their behalf, while the other is paralysed and the parents cannot get legal aid.
Are we really saying that a brain-damaged child who can walk needs more care and support than a child who has to be carried to the bathroom and turned in bed during the night? The severe difficulties facing the child’s parents will be exactly the same in both cases. They will be desperate for help. They will want to know whether they have a legal case and, first and foremost, they will be giving their child the day-to-day care and love that all parents must, whatever the difficulties.
Are we really going to ask half of those parents to appeal to the director of legal aid casework to see whether their child qualifies for legal aid as an exceptional case—as if that would be a satisfactory way to organise legal aid for children even from the Government’s point of view? I ask noble Lords to consider the expense, bureaucracy and delay that will result from such an approach.
I have highlighted medical negligence but, as a former leader of a local authority, I could go through each subject heading and make a similar case. The simple truth is that children are defined as minors in law because they cannot represent themselves and sometimes need protection and redress from their families and from the state. It is not good enough to suggest that a social worker can apply for their legal support as an exceptional case. Social workers are not legal executives and have no legal training. Inherent in that suggestion is a misunderstanding of the nature of the legal actions that may be taken. In most cases, the child will be challenging a decision or action taken by the local authority. Do we really believe that every social worker will apply for a child to have legal aid in cases which challenge his or her decisions or those of his or her employer?
All of us in this House understand that in a healthy democracy, it must be possible to challenge the state, particularly where children are concerned. We also understand that there are lots of terrible cases where children’s voices have not been heard, which is why we need to ensure that they can take independent legal advice that is accessible directly, not via a social worker or any other arm of government.
I support the amendments because I believe that they will save an enormous amount of trouble and wasteful expenditure for the Government, whom I support. I want to help the Government to pull back from what would be a regrettable and avoidable mistake, and they will save a great deal of anxiety for parents who are already coping with more than anyone should have to bear.
Lord Avebury
My Lords, I would have been inclined to support the amendment if I had not been here to listen to the debate and heard what my noble friend had to say, which appears basically to contradict the argument just made by the noble Baroness, Lady Eaton. She was saying that in the case of the infant who died at Frenchay Hospital, the case could not have been brought if legal aid had not been available; but my noble friend said that it was preferable, in terms of the amount that the litigant would receive, to conduct a case of this sort through the conditional fee arrangements which are now available. The litigant would have ended up with more money than would have been available to the child under the arrangements that prevailed at the time of that terrible accident.
I should like to hear from my noble friend when he winds up whether it is a general principle that can be accepted on all sides of the House that people who were formerly legally aided would have done worse than those who are now to be conducting their cases under the CFA. Saying that we do not need an arrangement of the sort put forward by the noble Lord, Lord Cormack, is a very powerful argument.
I also thought that perhaps the noble Lord had failed to notice that in all these cases involving children there is a litigation friend, who has to be approved by the court. Therefore, his comment that we are looking at people who are least able to help themselves may not be altogether valid. The parent or a suitable adult always appears on the child’s behalf and the child does not have to go into the court without that support. Therefore, although children may be apparently less able to conduct litigation, they do not have to deal with these matters in the court; litigation friends appear on their behalf.
Lord Cormack
I am well aware of that but the point that I was seeking to make in a very brief speech was that those who are damaged by an agency of the state deserve the help of the state automatically if they are seeking redress.
Lord Avebury
I am not sure that that proposition is right. I do not think that my noble friend had borne in mind the possibility that the child would do better financially under the CFA. That is a very important consideration. In fact, in my mind it is the determining consideration in how I approach this amendment. If the argument of my noble friend Lord Thomas of Gresford is correct, it is conclusive that we should not support the amendment but that we should allow cases to go forward under the CFA, under which people will be better compensated than they would have been.
Baroness Massey of Darwen
My Lords, I have put my name to an amendment in this group—that in the names of the noble Baroness, Lady Howe, and others. I simply make one appeal to the Government concerning their commitment to protect vulnerable children and young people.
I declare an interest as the chair of the All-Party Parliamentary Group for Children. Over the past year our theme has been vulnerable children. We have heard about the problems that such children and their families have in dealing with complex systems such as education, health and the law, and we have heard many passionate and committed speeches about these young people today. In my experience, this House has never been party-political on issues regarding children; it has always considered the well-being of children to be above party politics. That spirit has been shown today on the Benches opposite, and long may it continue.
The Minister for Children, Sarah Teather, for whom I have the greatest respect, made a commitment in 2010 to assess legislation against the needs of children, as enshrined in the United Nations Convention on the Rights of the Child, and I find it ironic that we are now considering legislation that will potentially damage vulnerable children and their families. The Government, in their report Positive for Youth—I shall not go into that but the commitment is there—made commitments to protect disadvantaged and vulnerable children, and the Liberal Democrat youth policy Free to be Young makes commitments to improve young people’s access to legal advice. I think we should all remember those commitments today. I trust that the Government will recognise that intervention at an early age, particularly for the vulnerable, is not only humane; it also benefits well-being and is cost effective. I hope that the Government will look again at the commitments to vulnerable children and young people.
Lord Howarth of Newport
My Lords, it is unfortunate that the amendments tabled on this important subject by the noble Baroness, Lady Miller of Chilthorne Domer, should have been reached so late at each successive phase of our consideration—in Committee, on Report and now at Third Reading. It is unfortunate because the House is less full than it might have been, and it is much more difficult at this stage of the evening to win a vote on an amendment opposed by the Government. If it is unfortunate for her, though, how much more unfortunate is it for homeless and vulnerable people all across the country? They will be deeply grateful to her for the passion, determination and eloquence with which she has pursued this subject, and we ought also to thank her.
We face a housing crisis in this country, and that crisis is deepening. I am grateful to the noble Baroness, Lady Northover, for the letter that she wrote to a number of us following a debate on Report on squatting. She herself has acknowledged that while the nature of the case means that it is difficult to know precisely how many people may be squatting in this country, the best estimate by academics, homelessness organisations and people who provide advice services to squatters is that there are no fewer than 10,000 people squatting and possibly as many as 50,000. Those are large numbers and those statistics, uncertain as they are, underline the gravity of the issue all the same.
What are the Government doing to respond to this problem? It so happens that today the Government have published the national planning policy framework. It is an important document with an extended two-page section in which the Government offer their thoughts on:
“Delivering a wide choice of high quality homes”—
words that may sound a little hollow to those who are homeless and those who are squatting. However, there are good intentions in the document. It is a vigorous exhortation to all concerned to act to increase the supply of housing in this country. There is a section at paragraph 51 that is very relevant to the amendments tabled by the noble Baroness:
“Local planning authorities should identify and bring back into residential use empty housing and buildings in line with local housing and empty homes strategies and, where appropriate, acquire properties under compulsory purchase powers”.
If local authorities were to act on that exhortation, that would be helpful. I would be grateful if the Minister would say how much more the Government intend to do to translate that aspiration and exhortation into an effective and practical reality. I am concerned that even where local planning and housing authorities will wish, as I am sure they will, to increase the supply of housing available for people in desperate need and to follow the particular advice that I have just quoted, it may not be easy for them because their resources have been much reduced and we are now just entering a phase in which local authorities are having to face the first and biggest part of a reduction of some 30 per cent in available resources. If they decide that they would like to use compulsory purchase powers, it is not clear to me how they are going to be able to afford to do so.
The Government’s broader economic strategy has, unfortunately, squeezed both growth and confidence, as the Chancellor was driven to recognise last week. The upshot is that the housing market is pretty well dead in the water. People do not have the confidence to apply for mortgages and bankers do not have the confidence to offer them, so house builders cannot find a market. While the private sector of housing development is stagnant, the Government have seen it as appropriate drastically to reduce funding for social housing construction. In the face of a rising population and rising demand, particularly at the lower end of the market, we are seeing reduced supply. The consequence is that rents are rising, and in the face of rising rents the Government have also judged it right to cut housing benefit severely.
The Government have also introduced their new policy for council tax benefit—a fixed budget for each local authority to limit the total that it can spend on the benefit. Our late friend and colleague, Lord Newton of Braintree, whom we all miss so much, spoke on that very topic in our debates on the Welfare Reform Bill. He asked what the position would be if there was a fixed budget for council tax benefit in a local authority area but a factory closure meant that it had to be spread across a larger number of people. He said that it was mad—that was the word that he used—and I think it is.
The noble Baroness, Lady Miller, is absolutely right to pull us up on this and to insist that, in the face of these circumstances and against the background of these other policies, now is not the time to criminalise people who may be driven by circumstances to fairly desperate actions, and to squatting in particular. It is not the time to criminalise them if they squat in a residential premise that has been unoccupied for 12 months and for which there is no planning application. She is also right to ask the Government, at the very least, to postpone implementation of this clause until they have conducted a thorough consultation with people across the country and on the ground who understand these issues. It is of course late. However, if the noble Baroness decides to test the opinion of the House, I will enthusiastically support her.
Lord Avebury
My Lords, I shall add only a few sentences to what the noble Lord, Lord Elystan-Morgan, said about the undesirability of creating new criminal offences unless there is a substantial reason to do so. Surely that argument is doubly important when the offence carries a term of imprisonment, in this case of up to 51 weeks. We all know—I thought that there was general agreement on this—that short sentences are harmful, leading to greater recidivism on the part of those so imprisoned.
If we are to create these new offences, there have to be extremely powerful arguments in their favour, whereas here the exact opposite is true. I will not rehearse all the reasons that have already been given by noble Lords as to why these provisions are unnecessary and harmful. However, keeping houses empty for more than a year is to be discouraged. People whose homes are occupied by squatters already have effective remedies. In the consultation, not only were 96 per cent of respondents against the clause, but that included the substantial opinions of such organisations as the Law Society, ACPO, the Criminal Bar Association, Liberty, Shelter and Crisis. There is also the fact that homelessness is increasing rapidly. For all these reasons, I hope that the Government will see reason and accept my noble friend’s amendment.
Baroness Howe of Idlicote
My Lords, I commend the noble Baroness, Lady Miller, on her persistence in pursuing this issue. Over time, she has opened our eyes to just what is involved.
The noble Baroness, Lady Hamwee, raised the question of homelessness and housing supply. One of the things that worries me a lot is the number of blocks of flats that are blocked up over huge areas and have been, I should have thought, for a good 12 months. They are areas of housing that could have been redeveloped much earlier if there had been any sense of urgency about getting on with that sort of building. We all know that there is a great deal of replacement of existing buildings in this country; it goes on the whole time. We know that we are in a financial crisis and that there are many people out of work who do not have the money to pay rent. I commend noble Lords to remember that just outside our own door, at the entrance to the Underground, one can find signs of people sleeping there at night. They sleep on the cold stone with their tiny bits of property literally outside the entrance to the Underground and cover themselves up with cardboard boxes as best they can. It is hardly a good advertisement for what we are doing to help those who are genuinely homeless.
I would like the noble Baroness who is responding to the amendment to concentrate on how many premises remain empty when they could be inhabited by families. That is no doubt a factor that increases rents. I will leave it at that. However, I have certainly begun to think rather more seriously about the issue than I did when the noble Baroness, Lady Miller, first raised it.