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

Debate between Lord Wallace of Tankerness and Baroness Smith of Basildon

Tuesday 17th March 2015 Grand Committee

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

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

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 Section 44 was repealed, as it extends to Scotland, by the Children’s Hearings (Scotland) Act 2011 and replaced for cases going forward under that Act by a similar provision made in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

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

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

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

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

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

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

[Baroness Smith of Basildon (Lab)]

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

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

[Lord Wallace of Tankerness]

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

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

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

Debate between Lord Wallace of Tankerness and Baroness Smith of Basildon

Thursday 22nd January 2015 Grand Committee

[Baroness Smith of Basildon (Lab)]

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

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

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

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

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

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

“the application has a real prospect of success”.

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

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

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

I am unclear exactly what that means.

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

[Lord Wallace of Tankerness (LD)]

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

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

[Baroness Smith of Basildon]

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

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

[Lord Wallace of Tankerness]

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

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

Immigration Bill

Debate between Lord Wallace of Tankerness and Baroness Smith of Basildon

Tuesday 1st April 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.

I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football. But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.

My only question to the noble Baroness, which I asked her when I saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.

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

My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.

The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.

The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.

However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—

Female Genital Mutilation

Debate between Lord Wallace of Tankerness and Baroness Smith of Basildon

Thursday 20th March 2014 Lords Chamber

[Lord Wallace of Tankerness]

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

[Baroness Smith of Basildon (Lab)]

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

[Lord Wallace of Tankerness]

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

Immigration Bill

Debate between Lord Wallace of Tankerness and Baroness Smith of Basildon

Wednesday 19th March 2014 Lords Chamber

[Baroness Smith of Basildon]

I share that difficulty. However, what the Bill does has quite significant implications. If I take the example of somebody who is employing an individual whose leave is revoked and who then appeals, the employer has the opportunity to continue to employ that person quite legally. What is being proposed here seems to make the employer commit an offence, because from the moment that leave is revoked, even if the individual is appealing against it, they are no longer allowed to employ that person. What I come back to on a number of areas in the Bill is the issue of unintended consequences—not thinking through from point A to point B. I may have it completely wrong, and I am happy if I have, but I would like some clarification on that point.

On the other two points, the Minister will be aware of how concerned we are about the Government’s proposals on appeals and administrative reviews. I fail to understand why the Government do not want to have the Independent Chief Inspector of Borders and Immigration reviewing decisions taken in this case. The noble Baroness asked him to confirm that. An explanation would be quite helpful. The same is true on Amendment 87ZF.

As with so many proposals the Government bring forward, I would like to understand the evidence behind the decisions being taken and an assurance that they understand and know the consequences, including the unintended consequences, of such measures.

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

My Lords, I thank my noble friend for moving this amendment and confessing, as did the noble Baroness, Lady Smith, to having difficulty getting her head around some of this. Having had this landed on me very recently, I have similar issues.

[Baroness Smith of Basildon]

It makes no difference. We spent weeks on this.

[Lord Wallace of Tankerness]

I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.

Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.

Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.

Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.

I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.

Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.

With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.

I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.

Immigration Bill

Debate between Lord Wallace of Tankerness and Baroness Smith of Basildon

Wednesday 5th March 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

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

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

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

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

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

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

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

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

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

[Baroness Smith of Basildon]

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

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

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

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

impact on the ability to seek judicial review.

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

--- Later in debate ---

[Lord Wallace of Tankerness]

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

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

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

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

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

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

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

[Baroness Smith of Basildon]

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

[Lord Wallace of Tankerness]

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

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

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

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

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

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

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[Baroness Smith of Basildon]

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

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

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

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

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

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

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

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

[Lord Wallace of Tankerness]

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

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

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

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

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

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

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

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

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[Baroness Smith of Basildon]

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

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

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

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

[Lord Wallace of Tankerness]

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

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

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

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

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

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

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

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

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

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

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

previous—

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

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

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

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

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[Baroness Smith of Basildon]

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

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

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

[Lord Wallace of Tankerness]

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

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

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

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

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

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

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

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

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

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