Female Genital Mutilation

Lord Patel Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Patel (CB)]

My Lords, I too thank the noble Lord, Lord Berkeley, for obtaining this debate, which concerns an important issue. As everybody knows, my background is in obstetrics. Because of that, I am involved in a charity that trains doctors and nurses in parts of Africa and the Far East to treat women with fistulas. I have seen the results of this barbaric and cruel procedure, which is sometimes carried out on young children. It results in not only immediate consequences but long-term consequences during childbirth, and it is horrendous to see, even at that stage.

I can talk about the medical consequences but I shall try to look at the legal side. I do so with some trepidation as a doctor taking on a lawyer of the distinction of the noble and learned Lord, Lord Keen of Elie. He is well known for his incisive dissection of the law and for trying to defend what cannot be defended.

As has already been mentioned, France is a European country that has been successful in getting the maximum number of convictions and prosecutions—to date, about 50. The reason given is that it has a policy of regularly examining children at risk and children at school. Children at risk have more regular follow-up examinations. Examination is not mandatory, as the noble Lord, Lord Smith of Hindhead, said, but refusal involves a penalty involving social security benefits. That is the key reason that France has been successful, although other countries in Europe have also achieved certain levels of prosecutions and convictions.

I looked at a study of female genital mutilation in Europe and an analysis of a sample of cases. Considering that some 500,000 women have probably gone through this procedure, Europe has not achieved the levels of prosecutions and convictions that it ought to have done. None the less, some countries have been successful. The study that I looked at developed a comparative overview of recent FGM court cases within the EU, as well as making an exploratory survey of transnational movements in relation to FGM. The legal aspects of the court cases in Europe were analysed, and evidence of transnational movement to have FGM performed was also assessed. The data included court decisions, the migration background of groups from FGM-practising countries in the host countries, the process of FGM reporting, and stakeholders’ proposals and opinions regarding FGM.

The report addressed the general legal context or framework for fighting FGM in the 11 countries that were looked at, including the United Kingdom and Switzerland, although of course Switzerland is not an EU country. It analysed the impact that the embracing of the due diligence standard could have as a consequence of signing the Istanbul convention, to which the United Kingdom is a party—albeit a more recent party.

Findings of FGM are modelled by disparities of public prosecution systems in Europe. Calling on state parties to apply the Istanbul convention and, accordingly, to modify existing provisions that limit their jurisdiction over FGM cases could have an impact on such procedural disparities. I have no doubt that the noble and learned Lord, Lord Keen of Elie, will challenge what I have just said—maybe not—but I am eager to hear his views on whether this disparity is in any way related to the laws and framework that we have.

The review of existing court cases shows the legal concepts of “error of prohibition” and “neglect of care” as novel approaches for both prosecution and prevention of FGM in Europe. As a consequence, the report points out that these aspects of due diligence, neglect of care and error of prohibition, ought to be further explored in future discussions—not primarily for their potential to result in more criminal court cases resulting in conviction but because of their potential power as preventive tools.

We know from the statistics we heard from several speakers that this crime is committed on a daily basis in the United Kingdom. We also know that the number of these cases is increasing. What we seem to be lacking is the evidence necessary to bring about prosecution, and therefore conviction. We made a mistake with the first case that we brought for prosecution and conviction, which was the wrong case of a doctor who was merely repairing the damage done at birth. In many cases, I have done that, and I am sure on occasions it was for women who have had FGM carried out on them. We need to examine whether there is an issue with our law as it operates or with the way we go about collecting the evidence, knowing, as I just said, that this crime is committed on a daily basis.

In all 11 countries, FGM is legally banned either through specific criminal provisions, as we have, or provisions in the penal code that penalise bodily injury and mutilation. Will the noble and learned Lord, Lord Keen of Elie, comment on whether our legislation complies with that? As I said, the most atypical prosecution occurred in the United Kingdom, but something similar happened in the Netherlands in the case of a father, originally from Morocco, which is not an FGM-practising country, who was accused of having performed FGM on his daughter.

The other question is whether the noble and learned Lord thinks that creating a unified European legal framework might help in detecting more cases and bringing about prosecution. The common framework is established by the Istanbul convention, which originates not from EU law but from the Council of Europe. The system of protection is, on paper, rather standardised, but the practice in different countries varies. As I said, the disparities detected in the procedure for reporting or not reporting, as well as for prosecuting or not prosecuting, would decrease if all countries adopted the Istanbul convention into legislation. Perhaps the noble and learned Lord might comment on that.

Why can we not get the evidence required? What is the nature of the evidence that is lacking and means that prosecution, and therefore conviction, is not brought about? As has been mentioned, if we could successfully prosecute a case and get a conviction, that would be the biggest deterrent to reducing further cases.

Serious Crime Bill [HL]

Lord Patel Excerpts

Monday 2nd March 2015 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I apologise to the House. Let me clarify the fact that we are debating Amendments 50 and 51.

[Lord Patel (CB)]

My Lords, I shall speak to Amendments 5 and 6 in particular. Before I start, let me say that I absolutely agree with the Minister that female genital mutilation—FGM—is a horrible procedure, and it is right to criminalise it, with the severest of penalties for anybody involved. I have seen many adolescent girls and young women whose subsequent health has been affected by female genital mutilation—occasionally resulting in death during childbirth, but much more often in the horrible condition known as obstetric fistula, which I have seen in Africa. I am therefore totally committed to making sure that this horrible procedure is made illegal and removed.

During the passage of the Bill through the Commons, the Government introduced an amendment to make it a duty for regulated healthcare professionals to notify police of female genital mutilation, and the amendment was accepted there. Like the professional organisations—particularly the regulators of the medical profession, the General Medical Council and the British Medical Association, and some of the colleges, particularly the Royal College of Paediatrics and Child Health—I am concerned about that amendment.

Our concern is about the proposed duty to report FGM in all known cases in girls and young women under 18. That duty will be a significant step change in the law. I am not aware of any other circumstances in which healthcare professionals are required to refer patients to the police without any regard to the potential impact on the patient. That is what concerns me—the potential impact on the patients, particularly young girls under 18, including 16 to 18 year-olds.

Doctors are required to make the care of patients their first concern, but of course they have to balance that duty against wider public interest considerations. There are clear circumstances in which they should disclose information to an appropriate agency. For example, it might be necessary to protect a specific person or people, or the public more broadly, from a risk of death or serious harm, or to assist in the investigation or prosecution of a crime. The General Medical Council guidelines in Protecting Children and Young People: The Responsibilities of All Doctors make that absolutely clear.

The proposed duty, however, allows no scope to consider the best interests of the child or young person. In effect, the duty mandates that the wider public interest in investigating whether or not a crime has been committed would always outweigh the girls’ rights and interests, including those of the individual child or young person. It is difficult to see how that satisfies the proportionality argument or requirement of Article 8 of the European Convention on Human Rights. It also means that doctors will sometimes be obliged—I agree, in rare circumstances—to act against what are considered to be the best interests of the patient. That is in conflict with the primary duty of doctors.

The Royal College of Paediatrics and Child Health also found that,

“there is no credible or conclusive evidence that ... mandatory reporting … better protects children at risk of harm, and its introduction would undermine that cultural approach of risk and responsibility sharing that has been developed in the current system. Mandatory reporting still raises more questions than it provides answers”.

In response to the Government’s consultation, the professions argued that any duty to report FGM should include a “reasonable excuse” for not reporting if it would be contrary to the best interests of the child or young person to do so. Further consideration needs to be given to the position of young women between the ages of 16 and 18. There is no clear line between childhood and adulthood. While under-18s have a different status in law, at 16 it is presumed that young people have the ability to make a whole range of decisions, including about their own care. Discussions about the treatment and care of a 17 year-old may be indistinguishable from those relating to an adult. Particular risk may arise in the context of maternity care, and here I have a particular concern. A young woman may not present to healthcare services if she fears it will result in a referral to the police. Young women who have undergone female genital mutilation as children will be at increased risk during maternity care and childbirth. They require particular and extra care during labour. That duty would undermine the provision of care that might be given to them.

There are many positive aspects to the Bill which I absolutely support. It makes a real difference to the lives of children and young women. This particular duty goes counter to that and I wish there was a phrase saying that in some circumstances there might be a need to protect children and young women. If we cannot change this today, I hope that at least there will be a commitment on the Minister’s part to make sure that the guidance will reflect our concern.

[Baroness Walmsley (LD)]

I wish to speak to Amendments 5 and 6 and hope that, in the further consultation on the guidance, the Government will be able to address the concerns raised by the noble Lord, Lord Patel. I have a question for my noble friend the Minister. There is nothing in the amendment about sanctions for not fulfilling this very serious duty to report a very serious crime, but the letter from the noble Lord, Lord Bates, referred to the fact that the sanctions would be professional and employment sanctions. I wonder whether my noble friend can clarify what that means and say why the Government feel that such sanctions to this new duty would be any more effective than the professional sanctions that already exist within professional associations for the sort of misconduct that we are talking about. To ignore knowledge of such a serious crime is not the sort of thing we would expect of a professional. Some of us feel that overlooking such a serious crime must require a more serious sanction than just leaving it to the professional associations to deal with.

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The noble Baroness, Lady Meacher, made a very good point about legislation not always being the answer, and I think I covered that in my earlier remarks. It is around changing the culture, raising awareness and improving training for professionals, and people being aware that this is—and has been for so many years—a criminal offence.

[Lord Patel]

I am sorry to interrupt the Minister. She repeated that it has been a criminal offence for 30 years and I absolutely agree. However, what has been a criminal offence for 30 years is to perform female genital mutilation, and we have failed to prosecute anybody for doing so. This might be a means to provide encouragement when a prosecution does come along, but we have to be aware, as my noble friend Lady Howe said, that there are serious things that may happen because of the amendment. If this amendment had already been in the Bill, we would have explored it in Committee in great depth. I am encouraged that the Minister says the guidance in the consultation will be wider. I hope that in the formulation of the consultation document, the noble Baroness and Ministers will also consult the professionals and teachers. It is not only the British Medical Association that did not like this amendment; it is also the General Medical Council, which is the regulator. If I do not report a case, I am breaking the law after this legislation, the General Medical Council will be obliged to investigate me and it might be to the point that it removes my licence to practise—I am temporarily still licensed to practise though maybe not for long. Therefore, it is a serious amendment to address.

[Baroness Williams of Trafford]

I thank the noble Lord and pay tribute to his years and years of experience, of which I have none. I take his point that although it has been a criminal offence for 30 years, there have not been any prosecutions brought. This legislation has not come without extensive consultation with a variety of different stakeholders or without raising awareness within the population as a whole—that is why the Girl Summit sought to raise awareness. The noble Lord is absolutely right: it will not be done by legislation alone.

The consultation will involve a wide range of stakeholders. What we had before was certainly not perfect or else we would not be revisiting it 30 years later. We can only hope that, by raising awareness, trying to change culture and putting in place the various measures that we have, we will actually get to a better place for these girls in the future. We are going to watch progress as time goes on.

I will just mention to the noble Lord, Lord Patel, that we received 150 responses from a wide range of different areas when the consultation closed on 12 January and we have had various workshops with healthcare professionals. I hope that gives him some comfort regarding the Government’s intention.

Modern Slavery Bill

Lord Patel Excerpts

Monday 23rd February 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I agree with everything that the noble Baroness has just said. It is a particular privilege for me to speak in support of the amendment moved by my noble friend Lady Doocey. Those of us who have known her for—I hesitate to say it—some decades know her to be careful, accurate and tenacious, the word used earlier by the noble Baroness, Lady Royall. I pay tribute to my noble friend for her tenacity in pursuing what many of us regard as an extremely important issue.

My noble friend identified the issue with great clarity. She said that if the law is as clear as the Director of Public Prosecutions and others have said it to be, why are there no prosecutions? Why is this successful, clear and full law resulting in no outcomes at all for exploited children in this country? I look forward to hearing the Minister’s response to those questions when he replies to this short debate.

Many of us are surprised and disappointed that there is no specific offence of child exploitation in one place in the law. The noble and learned Lord, Lord Judge, has said much the same previously and most lawyers who have to consider child exploitation would welcome a single offence in a single place which could readily be assessed and understood. The noble Baroness, Lady Royall, spoke about age disputes. I hope the Minister will confirm that the suggestion that age would create a difficulty in enacting an offence such as the one proposed in Amendment 5 is a false point. Age disputes are litigated almost every day in the Administrative Court—they are extremely common—and there are clear ways in which such disputes are determined. They are determined—surprise, surprise—by evidence, and the evidence available to determine such disputes is now expert, well-tried and tested, and capable of speedy decision when such disputes occur.

If the Minister rejects, as I apprehend he will, my noble friend’s amendment. I hope he will give a government commitment to plug any gaps that may emerge hereafter if his views are proved to be incorrect. It is shocking that there has not been a single case brought of child exploitation, at least of the kind envisaged here. We heard discussion earlier about the number of prosecutions for female genital mutilation. If one takes child exploitation and female genital mutilation as two of the most important and horrifying offences committed against children in this country and reflects that there have been two prosecutions so far—one monumentally unsuccessful recently—in both those categories added together, one has the right to be concerned.

I ask the Minister to tell your Lordships what he expects to be the outcome of the work which has now been started, apparently, between the Crown Prosecution Service, the police and others. If the outcome is merely to discover that there have been no prosecutions because there is an inadequate understanding of the law, one is bound to ask why. I suspect the answer will be because the law is confusing, and so we go round the full circle and arrive at the conclusion that there ought to be the new offence—albeit with assistance from government draftsmen—proposed by my noble friend Lady Doocey.

I would ask the Minister to ensure that, if he rejects the amendment, he can leave us in a frame of mind of genuine optimism that there will be more prosecutions and an increased prospect of convictions even if no change is to be made to the law. Somehow I doubt it and I suspect that we shall be returning to this very important issue in the not too distant future.

[Lord Patel (CB)]

My Lords, I rise to support the amendment moved by the noble Baroness, Lady Doocey. I have added my name to it. I will be brief as both the noble Baroness, Lady Doocey, and the noble Lord, Lord Carlile, who has just spoken, have made the case clearly and forcefully that the current law must be inadequate as there have been no convictions. I have heard the argument before that there is no issue with the law, but that it is the practice which is the problem, and that is why there have been no convictions. However, as the noble Lord, Lord Carlile, has just said, it cannot be that it is just the practice, it must be that the law is deficient in some way, otherwise there would have been convictions against those who commit this horrible crime against children.

The treatment of cases involving children must reflect that in international law children are a special case because of their particular vulnerability and so cannot consent to exploitation. As it stands, Clause 1 of the Bill does not state clearly enough that there is no need to show that force, threats or deception were present in cases of child exploitation. Subsection (3) of the proposed new clause set out in Amendment 5 makes the point that there is a need to include that in the Bill.

The noble Baroness, Lady Doocey, mentioned the letter written by the Minister to the noble Baroness, Lady Royall, on 16 February. It stated:

“Where a person deliberately targets a vulnerable person, such as a child, there is no requirement for any force, threats or deception to be used to induce the child into being exploited”.

This statement perfectly encapsulates what the Bill itself should state so that there are no grey areas and those prosecuting cases are 100% clear what the thresholds of proof are in children’s cases. Government Amendment 4 is welcome, but in my view it does not go far enough towards including that. The Government must formally commit to their intention that force, threats or deception are not required in children’s cases. A failure to improve the current Clause 1 offence leaves the Bill open to interpretation on this key issue, which would be a major disservice to child victims. They must be able to trust in our laws to protect them and ensure their access to justice for the heinous crimes committed against them. I hope that the Minister will be able to comment on that, if not in the Bill, then to state it clearly for the record that that is the Government’s intention.

[Baroness Butler-Sloss]

My Lords, I am the first person not to support the amendment moved by the noble Baroness, Lady Doocey. I have sympathy for the points she has made and I am very relieved by government Amendment 4 which was discussed earlier. However, one important point that the noble Lords, Lord Carlile and Lord Patel, have rather overlooked is that the present law will be changed by this Bill. Therefore one hopes that when it becomes law, there will be the prosecutions which have been so lamentably absent under the previous law.

A lot of what has been said turns on issues of training and practice. This morning I met the Independent Anti-slavery Commissioner, who was at pains to tell me that he sees his job as commissioner to include pushing the College of Policing, pushing the chief constable, Shaun Sawyer, with whom he has been in conversation several times and is seeing again next Monday, and pushing the Crown Prosecution Service towards better practice and better training. He sees all this as some of the most important parts of his work.

I hope that when the Bill becomes law much of what has been said so far today will fall into the background. It is also important to remember that when the joint pre-legislative scrutiny committee, of which I was a member, discussed child exploitation, we rather bravely and rashly put forward our own Part 1 of the Bill. In it, we had a child exploitation clause, but within the wording that we put forward in the clauses that we recommended. The Government did not accept our Part 1 of the Bill and have put in, under Clauses 1 and 2, different propositions. If we now have a child exploitation clause, it will clash with and to some extent repeat what is already in Clause 1. There will therefore be a degree of confusion for the police, the Crown Prosecution Service and even at the end of the day, I suspect, for the judge instructing the jury as to what the position really is. It is very important that when the noble and learned Lord, Lord Judge, for whom of course I have the greatest admiration and respect, spoke about the child exploitation clause, he was doing so in the context of giving evidence to the Select Committee at a time when he was looking at our draft as well as at the former government draft, which is not the same as the present one.

Another point, made by the noble Lord, Lord Carlile, is that age dispute issues in the Administrative Court are easy to resolve. They appear, from what I am told, to be a great deal less easy to resolve in the criminal courts. Indeed, Kevin Hyland, the commissioner, said to me that when he was head of the human trafficking group in the Metropolitan Police, he was present at a trial when an issue was raised of whether the child was or was not a child under 18. It took up so much of the time, and the jury clearly was not satisfied whether the child was or was not a child and acquitted. There is no shortage of young women coming into this country who are attractive and mature; they may well be 14, or they could be 19 or 25. We are not talking perhaps so much about English children brought up in this country, but children from Nigeria.

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[Baroness Howarth of Breckland (CB)]

My Lords, I am somewhat bemused about where we are in this debate. My view has always been quite clear: we already have enough legislation. I think that some of these cases are already appearing before the courts under general children’s legislation.

As I understand it, CAFCASS has recently been involved in a situation where a child was begging. We have to remember that very often the people who are exploiting children are the children’s own parents or relatives. This child was being exploited and selling the Big Issue 12 hours a day on the streets. She was exploited by her father, who went to prison. That seems to be just the sort of case we are talking about, but prosecuted under quite different legislation—the children’s legislation concerning neglect. Maybe that is where we should also look. We should see where else action is being taken.

I listened to the noble Baroness, Lady Doocey, very carefully. I do not agree with her amendment but I am very much in sympathy with what she was saying in her speech. She identified some very important issues. One issue that perhaps we have missed throughout this debate is the one found in proposed new subsection (6) of the amendment, about vulnerable children who find themselves in difficulties because they do not understand what they are being expected to do, and even if they do, they have been so groomed or so frightened that they carry out whatever action is undertaken quite unconsciously; and even if it is consciously, they are in difficulties. We need to look at that and make absolutely sure that we are not going to be prosecuting children and young people when they are in those sorts of difficulties.

However, I am still of the belief that if we look at all the horrific incidents in the newspapers that have happened to children and young people recently—never mind all the ones that we in the profession know about: the thousands of children on child protection registers and the hundreds of cases that go through the courts every day—we know that there is legislation that could have protected those children. There is no doubt that the girls of Rotherham could have been protected by the legislation that is there. That is what the inquiry found: they could have been protected. So I disagree with my noble friend—

[Lord Patel]

Rarely.

[Baroness Howarth of Breckland]

I have huge respect for him, but I really do think that this is a question of practice and of training. We keep repeating those words like a sort of mantra. What happens is the real issue—what action is taken to make sure that not just the police and the prosecutors but the health workers, social workers and voluntary workers, not those in the specific field of action but those who come across children in different ways, understand what they are seeing. I fear that, certainly in my area, modern social work training is not as precise in helping people to understand what they are seeing and then giving them courage and a legal understanding of what they can do next.

I say to the noble Baroness, Lady Doocey, that I stand somewhere in the middle on this issue. I have never been a great believer that more legislation will make a difference. My experience—and history—tells us that it does not. Some legislation will make a difference. The Government’s clause may well give a little jolt to the whole issue, but I hope that they will tell us what they are going to do to encourage all the professions to take this seriously. That goes not just for this area but for the whole range of child care and protection. We are at this time in this country in serious difficulties in making sure that our children are adequately cared for and protected.

Modern Slavery Bill

Lord Patel Excerpts

Monday 8th December 2014 Lords Chamber

[Lord Patel (CB)]

My Lords, I shall speak to the group of amendments that stand in my name, starting with Amendment 66A. As the noble Lord, Lord Warner, has already said, many of the amendments in this group and in subsequent groups are of a piece. There will therefore no doubt be some duplication in the comments that we make. We have already discussed issues related to the independence of the anti-slavery commissioner on previous amendments in Committee. None the less, I ask the leave of the House to repeat some of the points.

Two themes have been much repeated by the Government in connection with this Bill and their wider intentions in the fight against modern slavery: first, that the victims must be at the heart of the Bill in everything we do; secondly, that the Bill would make the United Kingdom a world leader in tackling modern slavery. Sadly, as it stands, the Bill does not live up to these aspirations. One way in which it falls short is in the provisions for the anti-slavery commissioner. Despite the addition of the word “independent” in the title, the commissioner currently has neither the independence nor the remit to be world leading. Moreover, Clause 41, which sets out the commissioner’s remit, has nothing to say about the protection and support of victims, as the noble Baroness, Lady Newlove, who was in her place just now, reminded us at Second Reading. Many noble Lords made these points at Second Reading. Leaving aside the Front Benchers, of the 29 speakers, 19 drew attention to the commissioner and among these, there was near unanimity that the Bill provided neither the requisite independence nor remit. Calls to address that came from across the House.

In opening the Second Reading debate, the Minister said:

“The commissioner’s role is set out in a similar way to other commissioners”.—[Official Report, 17/11/14; col. 239.]

I wonder: which other commissioners? Certainly, the role is not set out in a similar way to that of the Children’s Commissioner for England or that of her counterparts in Northern Ireland, Scotland or Wales. These commissioners are not controlled by their respective government departments in the way that is done in the Bill, particularly in Clauses 41 and 42. Those clauses give power to the Home Secretary to edit the anti-slavery commissioner’s report and to approve, and by implication disapprove, his strategic plans. They also give similar powers to the Department of Justice in Northern Ireland and to the Scottish Ministers.

The amendments to Clause 42 in my name give us an opportunity to consider these unusual restrictions on the commissioner. Amendments 72ZA, 72B, 72C, 73A, 74A, 74B, 74C and 74D would remove from the Home Secretary the role of approving the commissioner’s strategic plan. Surely, setting his own strategic plan, without interference or the need to have approval from the Home Secretary, is the least we should expect of an independent commissioner. Why does the Bill empower the Home Secretary to give or withhold approval for the commissioner’s strategic plan? How is such a power compatible with a truly independent commissioner? My Amendment 74E would remove the power given to the Home Secretary and her counterparts in Northern Ireland and Scotland to remove material from the commissioner’s annual report. The amendment removes the final four subsections of Clause 42. These subsections allow material to be removed from the commissioner’s annual report on the grounds of the interests of national security, jeopardising the safety of any person and the risk of prejudice to the investigation or prosecution of an offence.

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Moved by

[Lord Patel]

85A: Clause 47, page 35, line 27, after “advocates” insert “and separated children advocates”

[Lord Patel]

I add my congratulations on the previous amendment, which was brought by the Government. There are some questions to be asked, and the noble Lord, Lord Hylton, addressed one of them, but there will be others that we will come to later. Meanwhile, I will address my Amendment 85A, along with Amendments 86A, 86B, 86C, 86D, 86E, 86F and 86G. My name is also on Amendment 86, under that of the noble Lord, Lord McColl. I am grateful to the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Judd, for putting their names to my amendment.

I will be brief because I see this as an exploratory or probing amendment, depending on the answers that I get from the Minister. I, of course, welcome Clause 47, which introduces an enabling provision for child trafficking advocates. In the light of the government amendment that we just agreed, we will see whether the legal assistance also applies to advocates. This is a significant and welcome step forward to protect child victims of trafficking. My amendment seeks to raise the issue of another extremely vulnerable group of children who, under current legislation, would miss out on the valuable support of an independent advocate to act in their best interests.

Amendments 85A and 86A to 86G would widen the scope of child trafficking advocates to provide advocates for all separated children. It is the separated children who are my concern. This is important for two reasons. Awarding an advocate to all separated children is, in my view, the only way to ensure that all trafficked children are awarded an advocate who can deal with the problems around identifying the victims of trafficking. Separated children are extremely vulnerable and need someone in this country to defend their interests. I can illustrate this with one real example. Let us call the child T for the sake of anonymity. The case study was provided at my request by the Children’s Society.

T is a 14 year-old boy who was referred to the Children’s Society by a walk-in health centre. At the time of referral, T was living with an older couple and some other young people, none of whom were related to him. He had come to the UK two years previously but had never regularised his immigration status, registered with a GP or attended a school. He was made to do all the cleaning and cooking in the house in exchange for his accommodation. The Children’s Society immediately realised that he had been trafficked, so the charity contacted the local authority as a matter of urgency.

Despite all efforts, the local authority and the local police were not sufficiently aware of the London Safeguarding Children Board’s guidance on working with trafficked children, and delayed prioritising the case with the degree of care it needed. The young person escaped from the family and ended up going missing, but due to the trusting relationship that he had built up with his project worker, he made contact again. The project worker went to pick him up and requested social services to arrange an emergency foster placement, which they agreed to do on the same day.

T is now in foster care and has started school. Timely access to education was something that the society had to advocate for strongly since none of the professionals involved seemed to know that an undocumented child is in fact required by law to attend school. T was referred to an immigration solicitor, who is helping him with his asylum claim and court order referral to the national referral mechanism for victims of trafficking. T was granted a “reasonable grounds” decision and is now taking part in social activities in a regular boys’ group. The key message of this case is that the help of a trusted, independent adult to ensure that children such as T can access vital services is needed for the welfare of these children and to ensure that they are recognised as the victims of trafficking.

I will focus in more detail on the problems of identifying victims of trafficking. Trafficked children are frequently not identified as such when they first enter the country. They may not acknowledge or disclose that they have been trafficked for some time. This is because of the level of exploitation they may have suffered at the hands of atrocious criminals, and they may even have been trafficked by a family member. Having an independent legal advocate will help to ensure that more children are identified as trafficked and then receive the support and services they are entitled to.

Separated children are extremely vulnerable. We all know the importance of having someone who is looking out for their best interests. However, many of these children have fled war, persecution and torture; they may have become separated from or even abandoned by their parents and carers once outside their country of origin. They are often physically and emotionally scarred when they enter the country. An independent legal advocate would support them while they overcome the language and cultural barriers, and help them to exercise their rights by holding local agencies to account. Without advocates, these children often end up living outside the system, destitute and homeless, and denied the safety and support they need and are entitled to as children.

Finally, there are financial benefits from providing advocates for all separated children. Research by the Children’s Society and UNICEF has found that for every £1 spent on service provision for three years, as much as £1.25 can be saved. This increases to £2.40 once the financial benefits for separated children who reach adulthood at the age of 18 are factored in. I will welcome the Government’s response to this amendment and their view on whether the evaluation of the ongoing pilot of child trafficking advocates will address the problems of identifying the victims of trafficking and review whether advocates should be provided for all separated children. I beg to move.

[Lord McColl of Dulwich (Con)]

My Lords, I shall speak to Amendments 86H, 103 and 104. Along with colleagues from all parties, I have been proposing the introduction of child trafficking advocates under a variety of different names since I first introduced my Private Member’s Bill on human trafficking in 2011. Since then your Lordships have consistently supported this measure as I, with others, have tabled proposals on several occasions over the past three years. Indeed, the clause in the Bill before us today is a direct result of the support shown by this House for the child trafficking guardian amendment to the then Immigration Bill, which was won by a majority of 98. I also recognise the degree to which the Government have moved their position from initial opposition to where we are today, and I am grateful to successive Ministers for taking the time to listen to these debates and engage constructively with the issue and with your Lordships’ concerns.

I warmly welcome the amendments made in the other place to give a stronger commitment to the introduction of child trafficking advocates and in setting out clearly that advocates must always act in the best interests of the child. These demonstrate the Government’s continued openness to listening to the concerns regarding this clause. and I very much hope that the Minister will continue in that vein as he responds to my amendments today.

I know that the Minister will say, as he did at Second Reading, that because there are pilots of child advocates going on around the country in 23 local authorities, we cannot take any further action on advocates during the passage of the Modern Slavery Bill. I support the trials to look into the practicalities of delivery, but I would respectfully disagree with the Minister on the point of substance. I believe that the trials should not hinder us from doing our job to provide the best framework for victims and that we should set out in statute a definition of the powers and functions of an advocate.

Before I explain my amendment, I would like to draw the attention of noble Lords to a significant change in the landscape both practically and politically that has come about since we last debated this matter in April. On 20 October, the Northern Ireland Assembly voted to create a system of guardians for trafficked children in the Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill, introduced by the noble Lord, Lord Morrow. The relevant clause in that Bill contains on the face of the legislation a full statement of the functions of the role, which are similar to those set out in Amendment 86H. I want to clarify for your Lordships that this provision, which was mentioned by various speakers at Second Reading, has been introduced without any sort of pilot scheme being run in Northern Ireland. In his closing speech at Second Reading the Minister said that the Home Office,

“will learn from that”—

the pilots—

“and on that basis set out in regulations what those responsibilities should be. That is exactly the same as what has happened in Northern Ireland”.—[Official Report, 17/11/14; col. 323.]

I am sure that the noble Lord was aware that there have been no pilots or trials in Northern Ireland; I am not implying that there were and I wanted to clarify the point.

I turn now to Amendment 86H. I am very grateful for the support of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall. I have tabled this amendment with their support because I believe that Clause 47 needs to be strengthened to ensure that the advocates are equipped and empowered to be effective in this vital role, to make sure that the clause meets international best practice and that it fulfils the intentions of this House, which were made clear in the Immigration Bill vote in April. It is my opinion that, without Amendment 86H, Clause 47 falls short of these objectives.

--- Later in debate ---

[Lord Bates]

I think that what I am getting at there is self-evident. If you extend the service of child trafficking advocates, clearly there is a cost implication. I was not suggesting at any stage that that was in any way an argument for or against. I was simply saying that it ought to be taken into account before we embark on an extension of the scheme. I am happy to write and come back on that, with further information about the basis of our assessment.

On the points made by my noble friend Lord McColl, it is intended that the functions and role of advocates in any national scheme will be set out in regulations. This will give the advocates the desired legislative basis without forcing us to make decisions about their role prior to the outcome and evaluation of the ongoing trial. The Delegated Powers and Regulatory Reform Committee accepted our approach—a point I have already made. We accept that a different approach has been taken in Northern Ireland, where an advocates scheme has not been trialled prior to setting out details of it in the Bill. It is our position, however, that the detail of advocates’ roles covered in the Northern Ireland Bill can be covered in our regulations, should this be supported by the findings of the ongoing trial. This takes in the point made by the noble Baroness, Lady Royall, when she said that there was a description effectively set out in the Northern Ireland legislation; that could be taken into account. We know that the pre-legislative scrutiny committee acknowledges that there is no one-size-fits-all in terms of advocacy schemes.

This is worth underscoring briefly. We accept that this is not a homogeneous group. This is not a group of people who have had similar experiences or who have similar needs. They are a very heterogeneous group and have different needs that must be addressed. That ought to be taken into account. The report highlighted that the Scottish system, which works very well without any legislative basis, would not necessarily translate well into England and Wales because of the different circumstances regarding trafficked children in different areas.

While we are concerned about child victims of modern slavery, the current trial and the provision in the Bill are focused on a particularly vulnerable group—namely, trafficked children. We know that trafficked children need to receive consistent support and protection to avoid them going missing and being retrafficked. We agree with my noble friend that the Bill is not the appropriate place for measures to extend the provision of advocates to all unaccompanied children, given its specialist focus on modern slavery.

I have dealt with the points raised in particular by my noble friend Lord McColl. I am aware that other points were raised. As I said when we discussed previous amendments, we will reflect on those points very carefully. I am sure that my noble friend Lord McColl, who accurately anticipated my response to his amendment, will probably tell us that he wants to revisit this issue later in our proceedings—which of course is his right. Perhaps in the interim we could have more discussions about how we can ensure that these child trafficking advocates work in the best way possible. We might also be able to share some interim findings from the trial that started in September, which would help inform the debate. With those assurances, I ask the noble Lord to consider withdrawing his amendment.

[Lord Patel]

My Lords, I pay tribute to my friend, the noble Lord, Lord McColl, and to the noble and learned Baroness, Lady Butler-Sloss. I paid tribute to them at Second Reading but do so again. We all know how hard both of them, particularly the noble Lord, Lord McColl, have worked for years for this Bill.

I thank those who supported my amendment—namely, the noble Baronesses, Lady Lister of Burtersett and Lady Kennedy of The Shaws, and the noble Earl, Lord Listowel. I understand the difficulties of including all separated and unaccompanied children in the Bill. However, I was trying to emphasise that we have enough evidence to suggest that separated children are very much at risk and often end up being trafficked or becoming involved in modern slavery: for example, the example I gave of child T. It would be a great shame if a Bill on modern slavery ended up excluding this group of very vulnerable children, for whom we have to find a solution in due course. However, I recognise the complexity of involving all unaccompanied children.

As the Minister rightly said, the central amendment in this group is Amendment 86H under the lead name of the noble Lord, Lord McColl. My name was added to that amendment, but the vagaries of communication over the weekend and of the printing of the Marshalled List meant that it was not included.

In summing up, the Minister said it was likely that the noble Lord, Lord McColl, would wish to revisit the issue. I noted that the noble Lord nodded enthusiastically, so the Minister was left in no doubt that he and those who support the amendment, including me, will return to it at a later stage.

The vagaries of the House procedures do not allow the noble Lord, Lord McColl, to thank all those who supported him, but I do so on his behalf. With that, I beg leave to withdraw the amendment.

Amendment 85A withdrawn.

Modern Slavery Bill

Lord Patel Excerpts

Wednesday 3rd December 2014 Lords Chamber

I have not been in the House that long, but it is not often in my experience that Bills come here with such widespread support for the basic principles. It seems such a shame to tarnish that by refusing to acknowledge the case that we should treat the commissioner—who after all will be upholding the human rights of some particularly vulnerable groups—as part of our important human rights machinery, and according the role the independence that it deserves and requires to be trusted and effective.

[Lord Patel (CB)]

I have added my name to the amendment in the name of the noble Lord, Lord Warner. Powerful arguments have already been presented as to why there is a need to make the role of the commissioner truly independent, and I strongly support that. The noble and learned Baroness, Lady Butler-Sloss, also referred to the evidence and the comments made by the Joint Committee in the scrutiny of the draft Bill. I further add that the role needs to be truly independent. When we come to discuss the functions, as we will on Monday, there will be several amendments, including mine, which we will no doubt debate at length. Those are important amendments. If we put the two groups of amendments together, it will make it even clearer why the role of the commissioner needs to be seen and defined as truly independent.

[Lord Hope of Craighead (CB)]

My Lords, I make a brief comment on this debate from my experience of setting up the Supreme Court. One of the concerns in moving the appellate jurisdiction from this House to the Supreme Court was the risk of its not establishing its independence from the Executive, which was of course never in doubt when the Appellate Committee sat in this House. One of the surprising struggles that we had to have at the beginning of the Supreme Court’s existence was in persuading officials in the Ministry of Justice that they did not really have any say over how the Supreme Court ran its affairs. It took some time to establish that point—and, in particular, that the chief executive, on whom the court depends for so much of its running, was to be answerable to the President of the court and not to the Lord Chancellor. Of course, that battle has been won and is now in the past, and the relationship is perfectly harmonious. But the fact that it took something like two or three years to establish that point was a lesson. It was not spelt out in every detail in the legislation that set up the Supreme Court, which was deliberately simple and easy to understand. I wish to stress that it is vital to get this sorted out at the very beginning, because opportunities for doing so later in legislation do not occur very often. I hope that the Minister will take that point into account as well as the others.

Modern Slavery Bill

Lord Patel Excerpts

Monday 1st December 2014 Lords Chamber

[Baroness Kennedy of Cradley (Lab)]

My Lords, I speak in support of Amendment 9 in the name of the noble Baroness, Lady Doocey. After sitting next to her for months in the work of the joint scrutiny committee, I feel that I can now describe her as my noble friend. Today I speak not only for myself but on behalf of my noble friend Lord Warner, who is unable to be in his place. I also support Amendments 24 and 26 in the name of my noble friend Lord Rosser.

Children who are victims of exploitation and trafficking need to be uppermost in our minds as we discuss the detail of the Bill. There is nothing more heartbreaking than seeing children—babies even—being abused for profit and personal gain: denied a childhood, denied an education and stripped of their life chances. Where better to start putting children at the heart of the Bill than Part 1, where we set out what we as a society find unacceptable?

As the noble Baroness, Lady Doocey, said, we should take the opportunity afforded to us by the Bill to give children the greatest protection we can and amend Part 1 to create a specific offence of child exploitation and a specific offence of child trafficking. This would make it explicit that this country will not tolerate such child abuse: that we have a national agenda to drive child exploitation off our streets and child trafficking out of our communities and country.

The amendments make clear and unequivocal our intent to prosecute those who traffic and exploit children. The noble and learned Lord, Lord Judge, said, when he gave evidence to the joint scrutiny committee:

“I think domestic legislation should say, ‘We mean this. It is defined as that’”.

I took this to mean that if we want our criminal justice system to drive up prosecution rates and convictions for child exploitation and trafficking, we need clarity of language. I believe that the amendments seek to give us that clarity. They are simple and direct and say exactly what we want to happen. If you exploit or traffic a child, you will be prosecuted.

The open-ended nature of Amendments 9 and 26 is also important. The evil ingenuity of the criminals who exploit children is truly shocking. As well as the prolific sexual exploitation we hear of, we have more babies being bought and sold; more children used to smuggle, produce and distribute drugs; and more child benefit fraud and street begging—to the extent where one child can make a gang around £100,000 a year.

The nature and types of exploitation that children are subjected to are continually evolving. We have recently seen increases in children being trafficked for the forced extraction of their blood and hair for rituals taking place here in the UK. Any definition of offences that we agree has to be as future-proof as possible so that, no matter how evil the mind of the criminal, the legislation will apply and protect.

Amendment 9 also makes it clear that, even if the exploiter has a lawful authority over the child, it is irrelevant. This is particularly important as children are sometimes exploited by their family members, and by members of their own community. The child may not even realise that they are being exploited. Some children may feel that their begging, for example, is contributing to the family finances and therefore are happy to do it and see it as part of their normal daily life. Making it clear that exploitation of a child is unacceptable, no matter who is asking them to do something, is absolutely essential.

Setting out a specific offence of child exploitation and child trafficking also makes it clear that an exploitative situation involving a child is distinct from one involving an adult, because a child can never consent to their own exploitation. Therefore, the evidential threshold for charging a person with child exploitation is lower, and proof should be easier as consent and compulsion need not be proved. Amendments that lead to a greater understanding of this lower evidential threshold among everyone involved in our criminal justice system, from judge to jury, will lead to more successful prosecutions.

Some have said that separate offences may complicate or confuse, but I have confidence that the professionals working in our criminal justice system will be able to cope with particular offences against children as well as the general offences. I think that separate offences would lead to less confusion, not more, and should not be either specific or general; they can and should be both. A specific child exploitation offence would also increase the focus on the non-sexual forms of child exploitation and help ensure that all forms of child exploitation are prosecuted. It will also raise awareness of non-sexual forms of child exploitation across the criminal justice system.

Child trafficking is on the rise and child exploitation is on the rise. The nature of both is constantly evolving. Specific offences in these areas are necessary. They will drive up prosecutions and help the system always see children as victims whom we need to protect. I hope that the noble Lord, Lord Bates, will reflect on the debate and the serious points made here today. If he is unable to agree anything regarding the amendments today, I hope that he will facilitate more discussion between now and Report for us to further discuss the points raised in the amendments.

[Lord Patel (CB)]

My Lords, I rise briefly to support the amendment of the noble Baroness, Lady Doocey, to which I have put my name. The reason why I strongly support it has been given by some of the noble Lords who have already spoken. We have evidence that the current levels of prosecution for trafficking children are woefully low. In fact, they are negligible. The Minister might correct me by giving me the exact number of prosecutions.

We also know that children face many different kinds of abuse and exploitation at the hands of traffickers, and that they represent a quarter of all known victims of modern slavery. The government amendment to Clause 2 is limited to consent to travel, which is not part of the international definition of trafficking. It is the exploitation itself to which the child cannot consent, not the level of travel. I am concerned that this will serve only to create further confusion over what ought to be a simple definition of child trafficking.

The noble Baroness, Lady Doocey, referred to the evidence in the Rotherham cases, among others, and demonstrated practitioners’ continued confusion over the consent of child victims of exploitation and society’s failure to prosecute those who abuse children. A child exploitation offence would contain a simple definition of child exploitation that includes the range of exploitation that children face. Some of it has already been mentioned by the noble Baroness, Lady Kennedy. A separate offence of child exploitation would help to bring abuses to prosecution and conviction. Therefore, I support the amendment. However, I intend to listen to the other arguments, particularly those of the noble and learned Baroness, Lady Butler-Sloss, who is about to speak, who may have a different opinion.

[Baroness Butler-Sloss]

My Lords, I would like to inject a cautionary note to this debate. Like everyone else in this House, I clearly support the concept that children should not be held in slavery, forced into labour or any other of the ways in which they may be either trafficked, using the English definition of trafficking and not, as has just been said, the European definition of trafficking, which does not require movement.

However, I am not satisfied that any of these amendments is necessary. The two illustrations given by the noble Baroness, Lady Doocey, were, of course, under the old law. In my view, government Amendments 4 and 7, already approved by this Committee, and government Amendment 13, which I would be astonished if the Committee did not approve, already carry Clauses 1 and 2 along the road to including children with adults—none of whom require consent. The idea that the standard for children should be different from that for adults is, if I may respectfully say so, wrong. Neither children nor adults who are enslaved or held in compulsory labour or servitude are required to consent. The government amendment to that effect has already been passed. Children and adults are in the same position.

We should also bear in mind the fact that the sentence for traffickers and those who enslave is already up to life, so there will not necessarily be a longer sentence because children are involved. The judge will have the opportunity to say, “This is a sentence for life”. He or she can say, because an adult is involved and the circumstances are not so serious, “I will give 14 years”, or, because a child is involved, “I will give life”. So there is no need for a different provision for children.

There are dangers with the word “exploitation”, which—despite the admirable subsection (4) of the proposed new clause—is capable of being taken too broadly. What the cases we have heard about, both at Second Reading and today, show is an appalling lack of good practice—and what we need to do is improve the practice of dealing with children. That requires training but it does not require extra legislation. To add that to what is already in Clauses 1 and 2 would be repetitive. I believe that the Government have gone far enough, with the amendments that they have tabled, to cover all sorts of slavery and exploitation that happens to children as well as adults.

Modern Slavery Bill

Lord Patel Excerpts

Monday 17th November 2014 Lords Chamber

[Lord Patel (CB)]

My Lords, I am sure that I speak for the whole House when I say that the noble Lord, Lord Cashman, has the sympathy of the whole House for the loss of his partner of 31 years at such a crucial time in his life.

It is a pleasure to speak following the noble Lord and a privilege to thank him, on behalf of the whole House, for his brilliant maiden speech. He became a household name in 1986, when he was cast as Colin Russell in the BBC programme “EastEnders”. I have no doubt that he is destined to become famous again in a different programme, or House. I have to disappoint him, however, because I have never watched the programme. My excuse is that by the time I was ready to watch it, he had departed the programme, so there was not much point.

As the noble Lord mentioned, he has championed the cause of human rights and civil liberties all his life, and no doubt we will continue to hear him do that. Following the controversy of Section 28, together with Ian McKellen he founded Stonewall. In this House, we heard a lot about Stonewall during the passage of the Bill on gay rights.

As a Member of the European Parliament, elected in 1999, he also used that position to defend human rights and civil liberties. He was successful in introducing legislation in the European Parliament. He served on the Labour Party’s National Executive Committee between 1998 and 1999 and again between 2001 and 2012, serving as chair in his last year. Following that, I wonder whether he is destined for high office on the Front Bench in this House in due course.

Michael received a special service award, I am pleased to say, from the American Association of Physicians for Human Rights—they do not give awards lightly—and an honorary doctorate from Staffordshire University for his work in the field of human rights. We look forward to hearing him many times, and I thank him today for his maiden speech.

I turn now to the Bill to make my small contribution. Before I do so, I pay tribute to the noble Lord, Lord McColl, and to the noble and learned Baroness, Lady Butler-Sloss, who have both championed the cause of trafficked children and modern slavery for some time. It is in no small measure due to them that we have this Bill today.

I listened very carefully, and with great respect, to both their contributions and I listened to the caution the noble and learned Baroness gave about us not striving to get too much in the way of changes to the legislation. However, I also listened to my noble friend Lord McColl—the fraternity of medicine and friendship goes well beyond the politics of the House, so I refer to him as my friend, my senior friend. I listened very carefully to his plea for trafficked children in particular, and that we make sure that the legislation protects them.

I also congratulate the Government on bringing this Bill forward. It goes a significant way to eliminating in the UK the modern form of slavery, which is, as the Explanatory Notes say, a brutal form of organised crime that treats vulnerable human beings, mostly women and children, as commodities. However, the Bill is more about prosecuting those who traffic, and it goes a long way towards doing so. However, it is light in legislation that would provide victim support, and in this area the Bill could be strengthened.

I recognise the Government’s commitment to tackling slavery, child trafficking and exploitation. However, the Bill misses an opportunity to afford better protection for child victims. The fact that there has not been a single prosecution for child trafficking proves the point, I think: it may well be linked to poor victim support. It is despite the 600 to 1,000 children who, it is estimated, are trafficked. The Bill needs to include a specific offence of child exploitation and trafficking. I look forward to the arguments of the noble and learned Baroness, Lady Butler-Sloss, as to why that might not be necessary—if she agrees—in Committee.

Given the vulnerability of children, current law relating to the offence of human trafficking fails children, in part due to those charged with protecting them not fully understanding the law. That may well be the cause of the lack of prosecutions. On Report in the Commons, the Minister indicated that she was minded to consider the issue of consent as it applies to children. The noble and learned Baroness, Lady Butler-Sloss, also referred to that: children held in slavery, servitude and required to perform forced labour. If that is the intention, why not include it in the Bill by amending Clause 47, as part of the new offence of child exploitation? Children will then get justice, where they currently seem not to.

Legislation also needs to go further in relation to child trafficking advocates. The noble Lord, Lord McColl, has championed this for many a year, if not for decades. While the amendment introduced in the Commons to what is now Clause 47(5) makes it clear that advocates must act in the best interests of the child, legislation needs to be extended to give child trafficking advocates legal powers—powers that include holding authorities to account and instructing solicitors on behalf of the child, in order to truly represent their best interests. An advocate acting as a friend—even a litigation friend, as suggested—does not fulfil the need to instruct solicitors nor compel local authorities to act to enable children to access the services that they need.

An amendment to Clause 47 should also be extended to include the provision of legal advocates for all separated migrant children, as recommended by the Joint Committee on Human Rights. Evidence shows that separated migrant children are often trafficked and the vulnerability of these children is already recognised in international law—and, within the United Kingdom, by Scotland and Northern Ireland. Why would it therefore be inappropriate to do the same in the rest of the UK?

Perhaps I may speak briefly about the role of the so-called independent anti-slavery commissioner. If the Government are to meet their ambition of truly making the UK free from modern slavery, the anti-slavery commissioner needs to have wider powers—powers that include true independence from the Government by reporting to Parliament, and powers to monitor victim assistance measures, to collect data from a wide range of other bodies and to monitor the impact of policies and legislation. The current powers of the commissioner, as stated in the Bill, are too narrow and will not deliver the improvement in prosecution and conviction rates that the Government wish to have. In her recent statements, the Home Secretary recognised the need for victim support and the protection of victims. Why should we not then have those in the powers of the commissioner? The argument put forward by the Government—that the role of the anti-slavery commissioner should not duplicate the roles of other commissioners—is weak. That argument was rejected by the Joint Committee on Human Rights and should be rejected by this House.

The victim protection provision in Part 5 also needs to be further strengthened to include, as has been mentioned, a duty on public authorities to assist victims and to include protection for migrant domestic workers on the overseas domestic workers’ visa. The current rules relating to employment and visa renewal end up with these workers being treated as modern-day slaves. If the legislation is different in other parts of the United Kingdom, my one question to the Minister would be: how would a commissioner whose responsibility goes throughout the United Kingdom be able to deliver efficiency unless the legislation is similar in all parts of the United Kingdom?

Visas: Health Insurance

Lord Patel Excerpts

Monday 17th March 2014 Lords Chamber

[Lord Taylor of Holbeach]

We have missed the noble Lord from our debates on these issues on the Immigration Bill. I assure him that the points he is making have been well made but the Government are quite clear that this does not put us in an uncompetitive position. Even the basic health insurance for a student going to Harvard is $958 and he might expect to pay $2,190 a year more if he wants full health cover. In Australia the annual payment would be £300; in New Zealand £325; in Canada £300. The actual cost of students in this respect is estimated by the Department of Health at £700 a year. This is not putting us at a disadvantage in the world market. We have the most excellent institutions here and I wish people would stop talking down our attractiveness as a place to study.

[Lord Patel (CB)]

On two occasions now the Minister has quoted the figure that a student would have to pay as £700. In reality, is it not true that we do not know the level of usage of the health service by students, and that the Department of Health is conducting an audit right now that will determine it?

[Lord Taylor of Holbeach]

I have some figures here in front of me. I respect the noble Lord and I think he would agree that we have had some good debates on this issue. The figures say that non-EEA students cost the NHS around £430 million per year, with an average cost per head to the NHS of more than £700 per year. Those are the figures that I am giving the House, and I am assured that they are authoritative.

Immigration Bill

Lord Patel Excerpts

Wednesday 12th March 2014 Lords Chamber

Moved by

[Lord Patel]

58: Clause 33, page 27, line 24, leave out from “charge” to end of line 25

[Lord Patel (CB)]

My Lords, after Monday’s debate, I do not think this should take very long. Amendment 58 relates to Clause 33, on immigration health charges, and specifically to subsection (3)(b), which says:

“An order under this section may in particular … specify the amount of any charge (and different amounts may be specified for different purposes)”.

My amendment would remove the words in brackets. As I understand it, we already have the defined charges of £150 for students and £200 for other immigrants.

In the debate we had on Monday, I asked the Minister:

“Once that levy has been paid, it will allow them”—

we were speaking about students—

“to access all health services. Is that quite clear?”.

The answer the Minister gave was:

“Yes, that is exactly right. They will have the same access to health services as is available to a permanent resident”.—[Official Report, 10/3/14; col. 1573.]

Later in our discussions I said:

“As I understood it, I thought he said that once the health surcharge—let us say it is £200—is paid, for the duration of their legitimate stay in this country all health services will be available to them”.

In his reply, the Minister corrected me. He said:

“It is a per annum charge, so if they are here for three years and are not a student it will be three times £200”.

I accept that. But he went on to say:

“But yes, that is exactly right”.—[Official Report, 10/3/14; col. 1574.]

That is, there will be no further charges and all health services will be available to whoever has paid the levy or the health service charge—students or other immigrants.

In that case, I do not know why there is a need to have the words,

“and different amounts may be specified for different purposes”.

We need to know what these purposes are and whether there will be extra charges. If there are, what will they be for, and what will be the tariff? That is my amendment. I beg to move.

[Lord Avebury]

My Lords, when we discussed this previously, I, too, asked my noble friend the Minister about the relationship of this provision to Clause 33(4), which says that,

“the Secretary of State must … have regard to the range of health services that are likely to be available free of charge to persons who have been given immigration permission”.

I said that that implied that certain services provided by the health service were not going to be free of charge to these people. My noble friend tried to reassure me on this point but it is there in the Bill. It seems inconsistent with the repeated declarations that were made by my noble friend the Minister—which the noble Lord, Lord Patel, has just quoted—that once you have paid this levy, you are free to access all health services provided by the NHS. If that is the case, Clause 33(4) should be deleted from the Bill.

--- Later in debate ---

[Lord Taylor of Holbeach]

There is nothing sinister here. This is not a Machiavellian move by the Government. It is to bring in a differential between the charge for students and the charge for ordinary migrants, which I am sure that noble Lords applaud. That is the objective. I reassure my noble friend that I will take her advice and write to Noble Lords on this point. I was here for Third Reading of the Pensions Bill, when mention was made of the weight of paper with which noble Lords have been bombarded concerning that Bill. I fear that we may be getting into the same situation here, but I hope that noble Lords will understand that, in technical matters such as this, it is often easier to put things in writing, because I can be more explicit.

[Lord Patel]

My Lords, I thank all noble Lords who have spoken. I have a few points to make. First, the Minister said that the subsections of Clause 33 were very carefully drafted. Listening to the debate, I think that there will be a collective opinion in the House today that that is not the case. I am pleased that the Minister said that he will look at the provisions to see whether the purpose for which they have been written can be clarified. I look forward to new amendments.

I am much clearer now about three things. First, once the health charge, or the levy, is paid, currently, for all those who pay the levy, health services will be available to them free of charge, just the same as permanent citizens of this country. That bit is clear. The second thing clarified by the Minister—I thank him for doing that—is that the words,

“and different amounts may be specified for different purposes”,

do not refer to health service charges but to categories of immigrants or students who we allow to come to this country.

The third purpose is what the noble Lord, Lord Avebury, referred to in subsection (4), which does refer to health charges that might be brought in subsequently. In answer to the question of the noble Lord, Lord Willis, the Minister was quite clear that they do not apply to residents of this country and that the Government had no intention of using this as a backdoor way to bring in charges in the NHS for citizens of this country. The subsection refers to extra charges that the Government may introduce through legislation which will be brought to Parliament in the first instance. I hope that I am clear in what I understand and that that is what the Minister said.

On that basis, until we see the redrafted clauses, I beg leave to withdraw the amendment.

Amendment 58 withdrawn.

Immigration Bill

Lord Patel Excerpts

Monday 10th March 2014 Lords Chamber

I will concentrate my activities on this Bill on students because I believe that this is the part of the Bill that is most defective. I urge noble Lords in all parts of the House, whatever their political affiliation, to support the plea made by the noble Lord, Lord Hannay, and so admirably followed up by my noble friend Lady Williams and the noble Baroness, Lady Warwick. I sincerely hope it will not be necessary for the House ever to divide on this issue because I hope the Government will recognise the powerful good sense of the arguments that have been advanced and which I am trying, in a gentle and modest way, to reinforce and support.

[Lord Patel (CB)]

My Lords, I strongly support the amendment moved by the noble Lord, Lord Hannay, which seeks to remove tier 2 and tier 4 students from the Bill in all its aspects. I will speak also to my own Amendment 57, which relates specifically to the health charges for tier 2 and tier 4 students. Before I do that, I will just comment on the unintended consequences of some of the Bill’s provisions.

Let us take the evidence that students will have to produce of their bona fide tier 2 or tier 4 visas. I came to this country as an east African Asian schoolboy in the late 1950s, to do A-levels before entering university. I did them at a school in Harrow—not the public school. That is not the point. The point is I went to look for accommodation, which I eventually found, and I still remember the address: 38 Priory Road NW6, near Kilburn. The adverts for rooms in the newspapers that I looked at would either say “No blacks” or they would say nothing. So you went to addresses whose adverts did not say, “No blacks”—what was the point of going to a place that did? Sometimes the door would open and shut in your face, with a response, “Sorry, the room has gone”, before they even asked whether you had gone there for a room. There will be unintended consequences of having to provide proof for non-EU students. Later I found out why there were five east African Asians and one non-east African Asian—there were six of us—staying at that address. It was because we were paying a higher rent. The landlord—whom I would not name, but I do remember his name—knew that we were no trouble. We were no trouble because we had no money anyway. We were law-abiding, decent young people—I hope. But that is exactly what will happen: those landlords who are willing to take non-EU students will charge higher rents. That will be the unintended consequence of the clause in this Bill relating to renting.

That is one good reason why I would favour a carte blanche removal of students from this legislation. I declare an interest: I am the chancellor of the University of Dundee. With our strength in life sciences and being the second university in Dundee with strength in computer sciences, we have a large number of non-EU students. A tier 2 student’s perception of a health levy would be that this was just another example of unfriendliness in the United Kingdom. They would already have paid a lot of money for visas, for English language tests and sometimes for interviews, and they will now have to pay more. Is there an evidence base to suggest that students access the NHS disproportionately? There is no evidence, from general practice, from A&E departments or from specialist hospitals, that students disproportionately access healthcare—quite the reverse. In my case, the students that we used to see were the girls who came to contraceptive clinics, but, most of the time, even my wife, who did general practice, did not see students particularly. So there is no evidence that students disproportionately access the NHS.

It has already been said that there are huge net economic gains to be had from having students in this country—of several billion pounds. A study carried out by Oxford Economics showed that students in Sheffield contributed £120 million to the local economy. Let us remember that they pay for housing; they pay for their travel; they pay for everyday living costs; and they also pay indirect taxes because they buy stuff on which they have to pay VAT. There is no economic loss associated with our having international students. However, the likely impact of a perception—it might be a perception but perception becomes a reality—is a decline in the number of overseas students, particularly in STEM subjects and in those related to medicine where at one time there were large numbers. Figures that I have been quoted show that the total number of visa applications fell from 313,000 in 2009-10 to 207,000 in 2012-13. Forty per cent of our students come to university through pathway providers, which are mainly independent schools. They have seen a decline of 21% and we are likely to see a further decline in total numbers as a result of these pathway students not coming to university. All in all, including international students in the provisions of this Bill will have a greater detrimental effect on universities.

It was interesting to read in evidence given to the Science and Technology Committee inquiry on STEM subjects by Philip Lockett of London South Bank University, Ian Bradley of Manchester University and Daniel Stevens of the NUS—noble Lords can read the transcript—that they felt that an NHS levy and charges would deter students coming to the UK, even though such a levy might be only £150. Tier 2 students—the postgraduate and research students—are among the most valuable students that you can have. From them, you pick out the brightest and the best, and you keep them here because they will contribute to our university strength. They felt that the levy and other difficulties that the Bill would pose for them in finding accommodation et cetera would deter them from coming here. In a survey of 3,100 students, 83% of PhD students felt that the levy would have a detrimental effect; 82% of those who had dependants said that it would have a detrimental effect—let us remember that the levy is on top of the visa cost for dependants that is going up by 50%. All these costs quite rightly add to their perception that we do not welcome non-EU international students. I know that we have had that debate and that it is not the intention of the Government, but the perception needs to be addressed.

[Lord Phillips of Sudbury (LD)]

My Lords, I had a communication this very morning from the University of Essex, from which I stood down as chancellor at Christmas after more than 10 years, which drew my attention to the fact that the Times of India newspaper recently had a headline stating, “Indian students feel unwelcome in Britain”. Other noble Lords have mentioned that. Indeed, the speeches we have had do not leave a great deal in need of saying, but I want to emphasise a couple of things.

The University of Essex, apart from the London School of Economics, has the greatest proportion of overseas students of any university in the United Kingdom. Happily, I may say that undergraduate applications for this year, coming in the autumn, have declined by only 1%, although it is notable that the decline in applications from China and India is 16%, which has all sorts of significances of which I am sure the Committee is aware and on which I shall not enlarge.

What I want to emphasise—and the noble Lord in moving the amendment touched on it very effectively—are the non-economic aspects of a university education in this country. I think that many here now would agree that our universities and the opportunity that they provide to students from every corner of the globe are a jewel in our national crown. It is quite extraordinary that we are, almost inadvertently, undertaking a series of changes that lead to the consequences which other noble Lords have emphasised in terms of the dropping-off of applications to come here and so on. The non-economic consequences of having overseas students at our universities can be underestimated. Some talk of it as “soft power”. I understand the force of the phrase, but I am more keen, if one is allowed to be in this age, on the personal ties and relationships that are formed by having a large body of overseas students among our students here, whether undergraduate or postgraduate. Those personal ties, loyalties and affections work miracles after they go away from their university, miracles in all aspects of human life: cultural and economic, of course, as well as personal, societal—you name it. I think that all of us would agree that the most valuable thing that we ever take from a university is our relationships and the extraordinary broadening of our understanding of the lives of other people in other continents that comes from a close, lifelong relationship with someone you have met at university or some number you have met. I am lucky enough to have a number of lifelong friends who came from other countries. What you get from that and they from you cannot be put in terms of pounds, shillings and pence and is of infinite value in a world wracked with problems and tensions. This country cannot with any semblance of common sense do anything to damage in any way that jewel in our crown at a time when the whole wide world is competing for students. Everybody wants foreign students. Every country in the world is expanding its student base at huge rates—China and India are two exemplars.

--- Later in debate ---

[Lord Bourne of Aberystwyth (Con)]

My Lords, in opposing the amendment, I certainly do not do so in any spirit of being against the importance that higher education students have to this country; clearly, they are important. We have had some very passionate speeches, with which I find myself much in agreement, about the danger of speculation, rumour and perception. However, it is important that we keep the changes that are put forward in perspective, and that we look at some of the facts as well. I put down some Written Questions and had back some answers based on figures from the Office for National Statistics about student numbers from some of our important markets. The latest figures available show significant rises from China, Hong Kong and Malaysia. Admittedly there are falls from India, but that is against a background of a fall in the value of the rupee, and other countries, such as Australia, have also noticed a fall in Indian student numbers. One or two noble Lords suggested that already a drop in student numbers was feeding through. That is certainly not true of many of our important markets.

Yes, perception is important, as are overseas students, but I would like to say something specific about the health charge, because I do not think that the amount has been addressed directly. The noble Lord, Lord Patel, suggested that we were suggesting that students were making calls on the health service disproportionately. I do not think that that is being suggested. I accept that that is not remotely the case.

[Lord Patel]

Just to clarify, my Lords, I was suggesting that students do not make disproportionate claims on the NHS.

[Lord Bourne of Aberystwyth]

That is certainly true but of course the charge is lower than the charge for other people, so that is going to be recognised in the proposal. The amount of the charge, at £150 per year, is significantly less than the average student would cost the health service, and I accept that that is as it should be. I think that the charge is actually lower than for other people. We need to get in perspective just how much the charge is: it is £150. I am not minimising that but, if you look at it spread over a year, and many of the students at a higher level will be here for a full year, you see that it is the cost of a Sunday newspaper each week throughout the year. It is important to keep that in perspective.

I look at the charge in terms of whether it is fair. I know what the noble Baroness, Lady Warwick, suggested, but we have to look at it in the round against the other changes. Compared with the other proposals, is it not fair that students should pay a charge, a levy, as well? I think that it is, against the background of the Bill and indeed of the other people in this country who have contributed.