European Union (Withdrawal) Bill

Debate between Lord Wallace of Tankerness and Baroness Lister of Burtersett

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I support the amendments moved and spoken to by the noble Lord, Lord Low. He set out the case extensively as to why these amendments should be made. I also echo his thanks to the noble and learned Lord, Lord Keen of Elie, for discussing them with us in what I found to be a useful and constructive meeting.

The first point I wish to raise is in relation to Amendment 83A, which seeks to take out the reference to,

“section 7(1), 8 or 9”,

and insert “this Act”. Can the Minister clarify in responding whether the Government’s Amendments 83AA, 83AB and 83AC will meet the purpose of that amendment? Our main concern had been that the original Bill, as it stood, put requirements on the Government with regard to what would have been Sections 7(1), 8 or 9—although Clause 8 has now been dropped from the Bill—but we were also concerned that Clause 17 had wide powers, to which the requirements under this part of Schedule 7 did not apply. It would appear that Amendment 83AB extends to Clause 17(1), which I think would go a long way, and Amendment 83AC to other parts in Schedule 2. I seek confirmation that that would now include all parts of the Bill when it becomes an Act, as in our amendment, which might be relevant to the requirements made under paragraph 22 of Schedule 7.

I make a further point in relation to Amendment 83E, which would require the Government—or the Minister in tabling regulations—to be,

“satisfied that it does not remove or diminish any protection provided by or under equalities legislation”.

As the noble Lord, Lord Low, indicated, the origin of much of this is a report from the Women and Equalities Select Committee in the other place which recommended that the Bill should explicitly commit to maintaining current levels of equality protection. In response, the Government tabled amendments in the Commons, the effect of which is that the Minister has to make a statement that,

“so far as required to do so by equalities legislation”,

the Minister had,

“had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010”.

That merely repeated what was already a matter of law, so it did not take us much further. This amendment would require the Minister to make a much wider statement that the proposed regulation,

“does not remove or diminish any protection provided by or under equalities legislation”.

I understand that that is the Government’s intention. It is their politically declared intention, and this amendment makes that a requirement.

When we discussed this with the Minister we agreed that the fact that Ministers are required to make statements under Section 19(1)(a) of the Human Rights Act focuses ministerial minds on whether a provision is compliant with the European Convention on Human Rights. We are saying here that, in terms of equalities legislation, ministerial minds should be focused when regulations are being brought forward so there is no diminution in any protection that it provides. That does not mean that there is a deliberate intent by the Government to diminish equalities legislation but means that people have to think about equality protection in bringing forward regulations, check right through and make sure that what is being done lives up to commitments that have been made. I cannot see any reason why Governments should be afraid of or concerned about this amendment. It merely seeks to give effect to the commitment that has already been made.

As the noble Lord, Lord Low, indicated, when we debated my Amendment 30, one of the objections of the noble Lord, Lord Callanan, was that the word “protection” did not have any statutory basis and therefore was not appropriate. He was possibly not aware that the Legislative and Regulatory Reform Act 2006 provides as one of the preconditions for the exercise of delegated powers under that Act that a provision,

“does not remove any necessary protection”,

so there is already a statutory basis for what we are proposing in this amendment, and therefore I support the amendment moved by the noble Lord, Lord Low.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am pleased to be able to speak in support of these amendments, to which I have added my name, especially as I was unable to speak in support of similar amendments in Committee because of another commitment. I am grateful to the noble Lord, Lord Low of Dalston, for his perseverance on this important issue. When I read the report of the Committee’s proceedings, I was pleased to note the warm words from the Minister, including his acknowledgment that the amendment looks very much like stated government policy, although he qualified that by arguing that the language of political commitment does not necessarily lend itself to the equalities statute book.

I am sure that no one would quarrel with that as a general proposition, but the body charged by Parliament with advising the Government on the equality and human rights implications of proposed legislation has drafted this amendment carefully to guard against such a weakness. I repeat the point made by the noble and learned Lord, Lord Wallace of Tankerness—that in particular the Minister objected to the use of the term “protection”, yet the EHRC points out that the term can be found in the Legislative and Regulatory Reform Act 2006 with regard to the use of delegated powers under that Act. It requires that a Minister must be satisfied that a provision,

“does not remove any necessary protection”.

Does that sound familiar? I imagine that is why the EHRC drafted this amendment in those terms.

The Minister also promised to take away for further consideration the point about the scope of the public sector equality duty, raised by the noble Lord, Lord Low, and also mentioned earlier today. The Minister described it as a constructive suggestion in order to bring further clarity to these parts of the Bill. It was thus very disappointing not to find the government amendment that would have brought this clarity, and I trust the Minister will explain why. I hope he will respond in particular to the EHRC’s injunction that:

“This must be rectified to ensure clarity and compliance with existing statutory duties”,


as the noble Lord, Lord Low, quoted earlier.

Immigration Bill

Debate between Lord Wallace of Tankerness and Baroness Lister of Burtersett

Wednesday 5th March 2014 Lords Chamber

[Baroness Lister of Burtersett]

I am sorry to interrupt the noble and learned Lord but I thought I would do so now rather than wait until my response at the end of his remarks. I did address the argument concerning the seven-year period—that point had already been made. I asked specifically why, as the noble and learned Lord said, the case refers to children aged four when the period given is seven years. I gave a specific example of how I know personally that a child under seven can have very strong connections outside the family. The Minister has not addressed that point.

[Lord Wallace of Tankerness]

My Lords, as I think the noble Baroness alluded to when she moved the amendment, in the Public Bill Committee in the other place my honourable friend Mark Harper, who was then the Immigration Minister, indicated that the age of seven had previously been brought in as a concession —known as DP5/96, from which I assume that it was brought in in 1996—against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying Article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what Article 8 required and it led to uncertainty and inconsistency. Therefore, the period of seven years had applied before.

I do not disagree that there may be cases that need to be looked at individually but the important point that we are seeking to make here is that it is for Parliament to indicate what it believes the age of a qualifying child should be. We are saying that in our judgment it should be seven, for the reasons I have articulated. I also indicated that ultimately it will be for the courts to determine the proportionality of a decision. However, passing this primary legislation will give a strong steer and an indication to the courts of what Parliament believes to be in the public interest. That is a judgment that the Government have made. I think I am right in saying that it was in the 2012 rules, which have been considered and which we now invite Parliament to endorse and to put into primary legislation.

The noble Baroness asked whether I could confirm that guidance will be published and how the Section 55 duty will apply in relation to cases considered. I confirm that it is our intention to publish guidance setting out how the best interests of the child will be considered. As I have already said, Section 55 requires the Secretary of State to have regard to the best interests of the child as a primary consideration, and the Bill does not change that.

I will write separately to the noble Baroness, placing a copy in the Library, in response to her query about the response to the asylum report and the consideration of children’s best interests. The Home Office response to the UNHCR report on asylum is still being considered.

Amendment 43 would replace “unduly harsh” with “disproportionate” when considering the effect on the partner or qualifying child of the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more. However, this would not reflect sufficiently clearly the weight that should be attached to the public interest in the deportation of such a foreign criminal. Nor would it achieve the aim of the legislation, which is to set out clearly how the Secretary of State and the courts should approach the proportionality test, taking account of the public interest as properly determined by government and Parliament.

We believe that the children’s best interests must be a primary consideration. We fully accept that and Clause 14 is carefully designed to reflect that. However, it is simply not the case that a child’s best interests will outweigh every other possible countervailing factor, including illegal immigration and serious criminality. Nor is it the case that the UK is obliged to allow all migrants who are parents to remain in the UK where this is in one child’s best interests, ignoring the interests of other members of the public, including children.

In cases that do not fall within the scope of Clause 14, consideration will still be given to the individual facts of the case having regard to Article 8 and Section 55. Clause 14 does not seek to cover every possible situation in which an Article 8 or Section 55 issue may arise. That would be too complex and unwieldy.

In EA (Nigeria) the court said that, in considering the best interests of a young child, the correct starting point is to assume that it is in the best interests of a child to live with and be brought up by his or her parents unless there are very good reasons why that is not the case. Therefore, where the child is being removed with their parents and as a family to that family’s country of origin, that is not a breach of Article 8 and we believe that it is consistent with the children duty in Section 55.

I hope that the House will agree that technical legal arguments about whether the best interests of a child is “a” or “the” primary consideration, or the order in which various factors must be considered, can be a distraction. The important point is that we comply with the obligation to treat the best interests of the child as a primary consideration. We believe Clause 14 is entirely consistent with that. The noble Baroness’s amendment has afforded me and other parts of the House the opportunity to make that very clear. However, we believe that the amendments would draw lines in the wrong place. For those reasons, I invite the noble Baroness to withdraw her amendment.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Wallace of Tankerness and Baroness Lister of Burtersett

Monday 16th December 2013 Lords Chamber

[Baroness Lister of Burtersett]

Can the noble and learned Lord give an answer to my question about whether any further work has been done on the equalities impact assessment? This is not relevant only to Northern Ireland but, for the reasons I gave, is particularly so there.

[Lord Wallace of Tankerness]

My Lords, I apologise for overlooking my scribbled note. As part of the impact assessment at the time the Bill was published, we said that 30 third parties were recognised by the Electoral Commission for the 2010 general election and that there were no robust equalities data covering these groups. However, we did not believe that these proposals would have an adverse equalities impact because of the wide range of groups that were registered. There is nothing to suggest that there was a preponderance of gender equality organisations. We therefore do not believe there is particular impact in that regard.

In the 2010 election in Northern Ireland, 10 third parties spent a total of £26,773 while £27,000 could potentially have been spent by each third party. The total for 10 third parties was, therefore, less than what one could have spent. Only two incurred expenditure above the current £5,000 registration threshold.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Baroness Lister of Burtersett

Monday 12th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, notwithstanding the hour—a point made by the noble Lord, Lord Bach—I agree with him that this is an important group of amendments. Clearly, there is concern about the parameters of the exceptional funding scheme that will be created by Clause 9. It is very clear that many of your Lordships would prefer a very broad discretionary power, perhaps akin to that proposed in Amendment 94, on the face of the Bill. However, I ask that we reflect on the fundamental purposes of the changes that we are making to the general legal aid scheme. We need these reforms in order to create a fair, balanced and sustainable legal aid scheme. We have taken into account the importance of the issue; the litigant’s ability to present their case, including their vulnerability; the availability of alternative sources of funding; and the availability of other routes to resolution. It is also right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice. Clause 9 achieves this important end.

I acknowledge that we have limited the exceptional funding power in such a way as to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights and European Union law. I acknowledge that this is a high threshold. However, it is right to limit exceptional funding to those important cases in which an individual’s fundamental rights of access to justice are challenged. I do not agree with the initial comments of the noble Lord, Lord Bach, which suggested that this would be impossible to operate. Certainly it is our anticipation that there will be several thousand applications to the fund. As I stated in Committee, there will not be a fixed budget for exceptional funding. It will also be available—we will come on to this later—where there is a wider public interest in an individual being represented at inquest proceedings into the death of a family member.

It is also important to note that the individual must qualify for such services in accordance with Clause 10, which will mean that decisions on exceptional funding will be subject to the means and merits criteria. The director of legal aid casework will make all exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions on excluded cases. Clause 4(3) provides that the Lord Chancellor may issue guidance or directions about the exercise of the director's functions, including functions exercised under Clause 9. Through this guidance, the Lord Chancellor will set out the legal criteria that the director must take into account in determining an exceptional case application.

I confirm that the guidance will be based largely on the factors that domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. It will be published in a clear and accessible format so that applicants and their solicitors can see whether their case will be likely to meet the necessary tests. Certainly it is our intention to publish more details of the operation of the proposed exceptional funding scheme, with associated guidance.

My noble friend Lady Hamwee asked a question about excluded cases that she had put to my noble friend Lord McNally. I have not had a conversation with my noble friend in which he imparted the question to me. In another context, she suggested that there might be a discussion outwith the debate. I am sure that my noble friend will be happy to answer her question in that context.

Amendment 93 would allow the director to fund excluded cases where he or she determines that it is in the interests of justice generally to do so. As the noble Lord, Lord Bach, said, Amendment 94 would allow the director to make an exceptional case determination where it is appropriate to do so in the circumstances of the case, taking into account certain prescribed criteria. In moving his amendment, my noble friend Lord Thomas of Gresford referred to Amendment 22, which we debated—I think—on Monday of last week. I indicated that I would take the matter away and think about it. His diary has now caught up with mine and I understand that we will meet tomorrow to discuss it further. He indicated that many issues that he believes will be covered under that amendment will go up to the director for a similar determination under Clause 9. Clearly that is something that we can pursue when we meet.

The phrase “interests of justice”—and the more seductive turnaround of the words proposed by my noble and learned friend Lord Mackay of Clashfern—is capable in this context of wide interpretation. The amendment would create a power that is considerably broader than the one we currently propose under Clause 9. As I acknowledged, Clause 9 is limited and we have already set out why it has to be so.

Our concern with Amendment 94 is again that it could be open to wide interpretation. Nevertheless, I will repeat an assurance that I gave before to the noble Lord, Lord Bach. Many factors listed in his amendment, such as the client’s capacity to represent themselves, their vulnerability, and alternative sources of funding, are to be found in the jurisprudence on Article 6 of the European Convention on Human Rights. As such, they would form part of the test for exceptional funding to be taken into account by the director in those cases where Article 6 is engaged.

In considering whether legal aid should be provided in an individual case, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent himself or herself effectively; and alternative means of securing access to justice.

Importantly, Clause 4(4) explicitly prohibits the Lord Chancellor giving directions or guidance to the director in relation to an individual case. We believe that this change will guarantee the objectivity of the decision-making process for both in-scope and excluded cases and serve as a safeguard against political interference in the making of any individual exceptional funding decisions in future.

My noble friend Lord Avebury tabled Amendment 93A, which is concerned with immigration cases in which an individual risks being unable to obtain qualified and affordable representation and where there may be a risk of injustice if the appellant is not represented. As we have made clear, and as we debated earlier this evening, the Government believe that asylum cases and immigration detention cases must be treated as a priority for funding. I am sure it will readily be agreed that the consequences of these cases are of much higher seriousness, involving threats to life and limb or to the liberty of the person.

Clause 9 indicates that civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) or (4) is satisfied. Paragraphs 1 to 27 of Part 1 of Schedule 1, if we include the Special Immigration Appeals Commission, all deal with aspects of immigration, including asylum, protection for legal aid for immigration detention and cases where there is domestic violence. In addition, we are also keeping legal aid for most immigration judicial review cases. Many cases will already be within scope and have a right to legal aid.

Protecting funding in these areas, which I hope your Lordships will agree are of fundamental importance, means that we have had to make difficult choices about other immigration cases, which have not been considered to be as high a priority. At the same time, we have been clear that funding for cases falling outside the scope of the civil legal aid scheme should be focused on those cases in which the failure to provide legal aid would amount to a breach of an individual’s rights under the ECHR or directly enforceable European Union law.

As my noble friend Lord Avebury noted, the case law of the European Court of Human Rights is currently clear that decisions concerning issues of immigration, nationality and residence do not engage Article 6 because they do not involve the determination of civil rights or obligations. My noble friend asked whether lack of immigration legal aid would breach Article 8 or Article 14. Exceptional funding would cover whatever legal aid is required by the European Convention on Human Rights or is enforceable under European Union law. As I have indicated, case law as it currently stands generally means what Article 6 requires, but if the case law were to change, the exceptional funding scheme would have to respond to that. As such, the Government’s position is that immigration cases will not generally qualify for exceptional funding, other than a few cases that may arise under other aspects of EU law. However, the fact that immigration cases would currently be unlikely to qualify for exceptional funding does not mean that injustice must inevitably arise from a lack of legally aided representation.

The noble Baroness, Lady Lister, asked about children and social workers. Children will rarely be applicants in non-asylum immigration cases and will normally be considered as part of their parents’ application. Child applicants are much more likely in asylum cases for which legal aid will remain available. The noble Baroness also referred to unaccompanied children. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them. Their role includes helping the child access the same advice and support as a child permanently settled in the United Kingdom, and they could also offer assistance in filling in forms, explaining terms and providing emotional support. I was asked particularly about training in immigration law. The proposal is not for social workers to give detailed legal immigration advice but to help with form filling. As I indicated in an earlier debate, we intend to work with the Office of the Immigration Services Commissioner to exempt local authorities from regulation so that they can offer low-level advice and assistance.

I do not wish to repeat everything that was said in the earlier debate, other than to remind the House that in trying to get the balance in immigration cases we have sought to focus legal aid on those areas that are of much greater seriousness to the individual; for example, where the individual is subject to domestic violence. More generally, we have gone as far as we can on exceptional funding, but we have made it clear that there is a narrow determination with regard to the European Convention on Human Rights.

Amendment 95 would make it a requirement for the director to consult with the chief coroner and have regard to his views before making a “significant wider public interest” determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the present funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case itself.

The Government believe it is important to retain the ability to fund inquest representation on the basis of wider public interest, because the provision of such representation may lead to findings that help prevent future deaths. That is why Clause 9(4) gives the director the power to provide funding on the basis of a wider public interest determination.

The onus has never been on the decision-maker to consult coroners, many of whom will not wish to give a view at all. Indeed, some coroners are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention. Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has “significant wider public interest”.

We envisage that, under the new exceptional funding system, the director will continue to consider the views of individual coroners when taking decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the European Convention on Human Rights. It would therefore seem somewhat incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the “significant wider public interest” aspect of the case.

We believe that compelling the director to consult with the chief coroner in all cases is likely to add an unnecessary bureaucratic element to the assessment process, which could lead to unfortunate delays. It would represent a significant burden on the chief coroner, who would be unfamiliar with the circumstances of each case, unlike the individual coroner holding the inquest. The chief coroner would be required to acquaint him or herself with information pertaining to a number of cases. We do not believe that there would be any obvious benefit for bereaved families, individual coroners or indeed the chief coroner in mandating this additional process in law.

I am not sure whether the noble Lord mentioned Amendment 96 in this group, which would compel the director to pay,

“reasonable costs incurred by any person making a successful funding application under this section”.

Perhaps it would be helpful to say that the concept of “reasonable costs” is open to broad interpretation and could be seen to authorise payments at commercial rather than prescribed legal aid rates. However, I can reassure the noble Lord that although discussions about the arrangements for exceptional funding applications are ongoing, we expect to propose that a payment may be made towards the costs associated with the making of an application where that application is successful.

I trust that my response indicates that the exceptional funding scheme is intended to provide an important safety net where an inequality of arms would lead to an obvious—and possibly unlawful—unfairness in proceedings. I accept that many people would like to see this cast much more widely and more cases brought within the ambit of exceptional funding. However, I have explained the architecture of the Bill and why it is cast in the way it is, with particular reference to the European Convention on Human Rights and the other specific issues with regard to coroners’ inquests.

[Baroness Lister of Burtersett]

My Lords, on unaccompanied children, I accept the point that social workers will not be expected to provide formal legal advice, but in the other place the Parliamentary Under-Secretary of State for Justice said that they could turn to law centres, pro bono representation or the Refugee Council for such formal legal advice. As I am sure the Minister knows, the Refugee Council and the Law Centres Federation have written to the Parliamentary Under-Secretary of State to say that it is simply impossible for that gap to be filled in that way and to point out that the Refugee Council does not provide that kind of support. Will the Minister take that on board? I still do not know where these children will get that legal advice if they need it.

[Lord Wallace of Tankerness]

The noble Baroness acknowledged that I referred to some of the issues about unaccompanied children, but I will certainly draw her remarks and the point that she made about the Refugee Council to the attention of my honourable friend the Parliamentary Under-Secretary of State.