Deregulation Bill

Lord Watson of Invergowrie Excerpts

Tuesday 11th November 2014 Grand Committee

Quite rightly, the noble Lord asked about child protection, with the amendment proposing its inclusion. This is clearly an important issue. I can confirm that Clause 58 already offers protection. A film is not eligible for this licensing exemption unless the British Board of Film Classification or the local licensing authority has issued a recommendation as to whether children may be admitted.

[Lord Watson of Invergowrie (Lab)]

When this issue was debated in Committee in the other place on 13 March, Toby Perkins MP raised concerns about child protection and asked what action could be taken where there was evidence that someone had regularly allowed children to watch films inappropriate to their age. Tom Brake MP, the Minister, said that he would set out in a letter what actions could be taken. Can the Minister tell me what that letter contained and what actions the Government envisage could be taken in such circumstances? I understand that he may not be able to give me the answer right away, but I would like to have that on the record.

--- Later in debate ---

[Lord Rooker (Lab)]

My Lords, I did not come to speak on this—I am a complete outsider as far as the media are concerned—but having listened to the noble Lord, Lord Grade, before the Division, I will.

This is unfortunate. I know that it is fair enough to make the point that we did not have these discussions on the draft Bill; I will not make a serious complaint about that, because things in the Bill have been added since the pre-legislative scrutiny. However, on what I know about the media, I certainly take the point of what the noble Lord, Lord Grade, said, that in the end this is basically all about the attempt to force the BBC to go down to a subscription channel basis, and I fundamentally disagree with that. The BBC has not helped itself in the last couple of years; as an outsider I have watched in the other place some absolutely inept performances in front of that Select Committee by very highly paid people, who on some occasions are inarticulate beyond belief. You can imagine where the groundswell against it comes from.

I fully accept that there has been an attempt to do something about the banker-style salaries. I fully accept that you need the best people, and it is a competitive market. I have nothing to declare, by the way. While Murdoch’s alive, I do not do Sky. I sacrifice Formula 1 and everything for that. There will come a day when I can have Sky, but it is not there at the moment. The fact is that there is a disparity when one sees the cost of what is advertised—but then you do not see the full cost of the BBC, for example. When you turn the radio on in the morning, you expect it to be on, but you do not see the separate figures for that. It is a bit like other services, whether schools or hospitals. When you walk through the door you do not see a price on the top—although now you do with universities, where the cost of walking through the door is nine grand a year. It is not quite like that; it is not put across that way. Therefore you do not have the marketing. The BBC has no interest in having the marketing to compete with the marketing that Sky does to make it seductive.

That is the only point I want to make. There is a conspiracy—no question about it. I freely admit that I was very tempted after it went to the Commons; I was not sure whether it would be put in the Commons or the Lords. When the arguments were first put they were very seductive on decriminalisation. I have friends who are magistrates, and they say, “Jeff, it’s nonsense. We parcel them all up—we do them all together”. On the time argument, the noble Lord, Lord Grade, said that it takes 3 minutes and 13 seconds. That is exactly believable—talk to magistrates. That is the way it is done. There is no time factor in the courts; there is no question about that. If anyone wants to go to jail in this country, it is very easy to do it—just do not pay the fines. Lots of people make a business out of that. Therefore the BBC is an excuse. However, I fully accept that there is an underlying issue. The BBC staff have to up their game when they appear before Select Committees, but we have to bear in mind that at the end of the day there is a seductive and well funded attempt here to force the BBC to go to a subscription service. We ought to oppose that at every step of the way.

[Lord Watson of Invergowrie]

My Lords, I, too, support the proposition that Clause 59 should not stand part of the Bill. The arguments have been very eloquently made, in many cases by people who are broadcasting professionals of many years’ experience. Of course I have nothing to offer in that sense. However, I fear that this is largely an ideologically driven suggestion. Whether it is intended to end up with subscription fees or not, I do not know, but I believe that it was suggested to fundamentally weaken the BBC by those who, for whatever reason, are not supporters of the organisation. I firmly declare myself a very firm supporter of the BBC in its various forms—radio, television, and not least the World Service, which is a tremendous organisation; what it achieves with the money it has is superb.

I would like to know, if the Minister can say, how decriminalising non-payment would be likely to reduce the number of those who, for whatever reason, refuse to pay the licence fee. I understand that the figure is around 5% on an annual basis. How would decriminalisation be likely to increase the payment of the fee? I cannot see any way in which that would be likely; in fact, the very opposite is almost certain to happen.

The other aspect is that the clause mentions monetary penalties for those who do not pay the fee. I am sorry, perhaps I am missing something, but if someone does not pay the licence fee, how will a monetary penalty imposed for not paying it make it more likely that the fee itself will be paid? I do not see the point of that.

It worries me that the BBC has often been undermined, and not just by the present Government; I have to say that on many occasions my party, when in government, did not exactly hold back from undermining the BBC or attacking its integrity or that of some of its reporters, which I thought was at best unfortunate if not misguided. So I do not make this a particularly party-political issue, although we have the Government that we have for the moment. I very much hope that this time next year there will be another party in government, my party, and that we will be prepared to say that we will not go ahead with decriminalising this offence.

My final point is a word of warning to the BBC’s many supporters in this Room. I suspect that even those who are in favour of decriminalisation are supporters of the BBC. We have heard from a producer today, and that was very valuable. However, anyone who read Olenka Frenkiel’s comments in the Guardian last Friday must accept that there are still problems that the BBC needs to address if it wants to broaden and deepen its support. It needs to treat its female staff—I am talking not so much about presenters as about reporters—in a far better way. I was really taken aback by what Olenka Frenkiel had to say. I thought that recent cases had meant that the BBC had turned round, but it appears that in that respect it has not.

If decriminalisation does go ahead at the end of the review, it will not help the BBC. Those of us who treasure the BBC and what it does, and who want to allow it to continue as far as possible into the future in the face of some pretty fierce competition, need to support the licence fee, what it stands for and what it is used for. If that is what we are going to do, we have to ensure that as many people pay it as possible, and I do not believe that the suggestion in this part of the Bill would achieve that purpose. That is why I oppose it.

Immigration Bill

Lord Watson of Invergowrie Excerpts

Tuesday 1st April 2014 Lords Chamber

[The Earl of Sandwich (CB)]

We had a long discussion about children earlier in the afternoon, and I am bringing back the subject of children today under the heading of “deportation”. This amendment is about the children of parents who are facing deportation. The Minister may remember that I was away for most of Committee, but I mentioned it at Second Reading and pointed out that, under the Bill, against the advice of the JCHR, individuals removed from this country may be prevented from challenging their deportation if they are no longer in the UK, and that their children, if separated from them for this or for other reasons, may be in particular difficulty. The noble Baroness, Lady Hamwee, expressed similar concerns in her amendment in Committee.

If the parent is removed, how will the Home Office discover the true situation of the child? As the noble Lord, Lord Pannick, said in that debate, in the light of the changes going on to judicial review, and other changes, there are real concerns about whether an effective practical remedy will remain available. The noble Lord, Lord Avebury, also brought this issue up earlier today. There will be huge practical barriers to individuals appealing their deportation from abroad. Such cases often turn on issues of credibility. Appellants will be severely disadvantaged by not appearing in court and, in the present climate of legal aid cuts, they will face serious problems in accessing any legal advice.

The noble Baroness, Lady Hamwee, had difficulty with a similar amendment, which is why I am bringing it back with an additional reference to the UN Convention on the Rights of the Child. Not surprisingly, this convention states that the child should not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine that such separation is necessary for the best interests of the child. Earlier, the noble Lord, Lord Taylor, gave yet another assurance on this. I note that Amendment 58 is about a duty regarding the welfare of children, and that the amendment in the name of the noble Lord, Lord Watson, concerns the best interests of children.

This matter surely also covers the point made in a previous debate by the noble Lord, Lord Bourne, that there might be ambiguity about what the best interests of the child were, and that the child might be better off with relations abroad. However, that does not, of course, cover every case. According to legal experts I have consulted, the safeguards under the Bill are insufficient. The noble Baroness, Lady Smith, said that there was still uncertainty in the clause as it stands. Therefore, my first question is: how will the Government consider a child’s best interests before deporting a parent to appeal from abroad?

The noble and learned Lord, Lord Wallace, said that the power was a discretionary one, applied only where there is not a risk of serious irreversible harm, and that it will therefore not be applied in all Article 8 cases. However, a parent’s deportation may result in grave harm to a child that is not irreversible. Therefore, my second question is: will parents be deported before an appeal in cases where this action will cause serious harm to their child, but only serious harm that the Home Office deems will not be irreversible? In Committee, the noble and learned Lord made it clear that we are dealing largely with criminals as well as failed asylum seekers. That may be so, yet one in three of these people does not fall neatly into that category; we know that because, in 2012-13, 32% of deportation appeals succeeded.

A number of these cases concern parents with British children or settled children who would be significantly harmed by their parents’ deportation. There are plenty of examples from the children’s consortium and Bail for Immigration Detainees which I will not relate today. However, the 2013 UNHCR report highlighted cases where Home Office decision-makers failed adequately to consider the child’s best interests, including in relation to Article 8 of the ECHR. The Home Office can already prevent repeated appeals by certifying claims as clearly unfounded, but Clause 16(3) will prevent people with arguable cases accessing justice.

The noble and learned Lord gave the assurance that, in exceptional circumstances, the power would not be applied—so what are the exceptional circumstances? It is argued that exceptional funding also provides a safeguard. However, the Joint Committee found in December 2013 that out of 746 people who had applied for exceptional funding, only 15 were granted funding, and two of those were immigration cases. We are back to the same old argument. In the experience of Bail for Immigration Detainees, detainees seldom have the skills needed to make their own applications—I know that the noble and learned Lord has heard this time and time again, but it is true—and solicitors rarely make applications because the work has to be done at the risk of non-payment.

I will give just one case study: that of Simone and Ray. Simone was trafficked into prostitution in the UK for three years and was then convicted of a drug-related offence. Her son, Ray, was a British citizen. He was less than one year old when she was arrested, and nearly four by the time of her release. During her sentence, he repeatedly asked for his mother, cried in his sleep, stopped eating properly and screamed uncontrollably after phone conversations with her.

The Home Office argued that Ray could leave the UK with Simone, but by this time he had close bonds with his father, who could not leave the UK for other reasons. Simone successfully appealed her deportation—but if Clause 16 becomes law, people like her will be deported before they can appeal.

Finally, as we are talking about removals, I heard only yesterday that the Home Office has decided to stop offering assisted voluntary return to anyone held in immigration detention as of today, 1 April. This scheme is operated by Refugee Action, through its Choices service. What is the purpose in ceasing to offer assisted voluntary return to those in detention? Do the Government not appreciate the negative effect this will have on removals and on the co-operation of detainees? I beg to move.

[Lord Watson of Invergowrie (Lab)]

My Lords, I shall speak to Amendments 16 and 20 in this group, which appear on the Marshalled List in my name.

Amendment 16 would ensure that the Bill recognised that the promotion of the best interests of the child is not simply a matter of the rights to be interfered with being in the public interest but that the promotion of those best interests is, in itself, in the public interest. In its current form, Clause 18 does not allow for proper consideration of the best interests of all children, as required by UK and international legislation. Despite government Amendment 58 reiterating their commitment to the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, Clause 18 does not make clear the need for the best interests of children to be a primary consideration in any Article 8 case involving a child. That includes those who are not British citizens and those who have not lived in the UK for at least seven years.

Amendment 58 does not address the concerns raised by non-governmental organisations, including the Refugee Children’s Consortium, about the lack of an explicit provision in Clause 18 to have regard to children’s best interests. What is required is a provision stipulating what judges must have regard to in the public interest when considering Article 8 of the European Convention on Human Rights in respect of family and private life.

Courts and judges are not under a statutory obligation to comply with the Section 55 duty. Instead, they review the Home Secretary’s decisions and actions in the light of her own duties. The courts have made it clear that children’s rights are a clear public interest consideration in addition to their own personal interests. As the Joint Committee on Human Rights notes in its scrutiny of the Bill, Parliament is entitled to put into primary legislation that which it considers to be in the public interest. The lack of a clear statement setting out the importance of children’s best interests as a factor to be considered creates a risk that children’s best interests will not be taken into account as a matter of public interest to the same degree as those public interest considerations listed in Clause 18. In its evidence to the Bill Committee, the Immigration Law Practitioners’ Association stated that Clause 18 directs attention to some factors at the expense of others. The most obvious missing factor is the best interests of children.

In 2012, the Supreme Court held in the case of HH—UKSC 25—that children’s interests are also public interests and not just private rights, stating,

“although the child has a right to her family life and all that goes with it, there is also a strong public interest in ensuring that children are properly brought up”.

In this respect, the Bill is not consistent with established case law and gives the impression that children’s interests amount to no more than the private and personal interests of an individual and their family. They clearly amount to more than that and this should be reflected in the Bill.

Amendment 20 reflects the fact that “unduly harsh” is an incorrect test of the context of considering what is best for a child, whereas “disproportionate” is known and well understood. New Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by this Bill and relating to Article 8 of the European Convention on Human Rights, states:

“Exception 2 applies”—

where there is—

“a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.

The “unduly harsh” test in relation to children is not consistent with the best interests principles. This test of “unduly harsh” is a legally defined term within the context of refugee protection and internal relocation. I should like to cite an example and I do so in due deference to the noble and learned Lord, Lord Hope. I hope that he will not mind if I quote from a case over which he presided in 2007—the case of the Secretary of State v AH (Sudan) and others. In that judgment, the noble and learned Lord was quoted as having stated in another case:

“‘The question ... is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally ... it will not be unreasonable to expect him to move there’”.

However, I do not believe that that test can be applied within the context of considering children’s best interests. Surely a child should not be expected to live a relatively normal life judged by the standards that prevail. That is not and, I submit, cannot be a best interests consideration. When considering a child’s best interests, a range of issues need to be taken into account, such as the child’s immediate safety and their access to, and the quality of, vital services such as healthcare and education. In addition, under the UN Convention on the Rights of the Child, every child has a right to be cared for by his or her parents. In fact, Article 9 says:

“States … shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.

The audit carried out by the UNHCR last year of Home Office procedures highlighted that there is no systematic collection or recording of the information necessary and relevant to a quality best-interests consideration in family cases. This includes a lack of any mechanism to obtain the views of the child and to give those views weight in line with age and maturity. Research carried out by the Greater Manchester Immigration Aid Unit into unaccompanied children’s asylum cases found that in 24 of 34 cases analysed, the Home Office failed to carry out any determination of the child’s best interests at all. The Joint Committee on Human Rights highlighted similar concerns in its scrutiny of this Bill, noting that without further clarity,

“there is a danger that front-line immigration officials … will be unclear about the relationship between the children duty in s. 55 and the new tests … which use different and unfamiliar language”.

The Government have said that, despite the introduction of tests in the courts, the courts would still be bound by the duty to promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 for all cases involving children. However, Clause 18 is likely to add further confusion, not least for decision-makers, as to how best interests are to be considered. Therefore, I believe that effective judicial oversight is crucial in ensuring that children’s best interests are taken into account in any case involving a child, and these considerations need to be made clear in the Bill.

In conclusion, considering whether it would be duly harsh to separate a child from his or her parent is inconsistent with the obligations to consider the child’s best interests. Perhaps I might invite the Minister to explain just what he understands “duly harsh” and “unduly harsh” to mean. At precisely what point does “duly harsh” become “unduly harsh”, and who decides where the line is crossed? The use instead of the term “disproportionate” at least allows for a balancing exercise within the well established approach to interference with Article 8 rights, which must include consideration of best interests. I very much hope that the Minister will take these points on board and I look forward to his response.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak to Amendment 21, supported by the noble Lord, Lord Pannick, and now, I believe, by the noble Lord, Lord Roberts, and perhaps in spirit by the right reverend Prelate the Bishop of Leicester.

First, however, I welcome Amendment 58 in the names of the noble Earl, Lord Listowel, and the noble Lord, Lord Taylor of Holbeach. This addresses one of the concerns raised by the Joint Committee on Human Rights, of which I am a member, as to how the Bill’s provisions were to be read alongside the Section 55 duty to safeguard and promote the welfare of children. But, sadly, as my noble friend has already said, it does not meet our related concern that Clause 18 should make explicit that the best interests of children must be taken into account as a primary consideration. I would be grateful if the Minister could explain on the record the implications of Amendment 58 for Clause 18, building on what the noble Lord, Lord Taylor, said earlier. As it is, I am still perplexed as to why the Government refuse to accept the best interests amendment, given that the Minister said very clearly in Committee:

“We believe that the children’s best interests must be a primary consideration”.—[Official Report, 5/3/14; col. 1384.]

Constitutional Settlement

Lord Watson of Invergowrie Excerpts

Thursday 11th October 2012 Lords Chamber

[Lord Foulkes of Cumnock]

Indeed, it is understandable. It is welcome that we have a representative of the Welsh nationalists here. I underline what the noble Lord, Lord Kerr of Kinlochard, said: it would be helpful if we had a representative of the SNP. I know Pete Wishart and some other MPs are quite keen on that, but there is one person who vetoes it, and he has a veto.

To return to my argument, I have written a couple of blogs recently arguing that both from the point of view of Scotland and the point of view of this place, we need a UK constitutional convention because of the piecemeal looks at constitutional reform that we have had in the past and all the anomalies and unintended consequences that have resulted. We need a coherent, consistent look, and we need to work towards a stable solution. One of the anomalies has already been mentioned: the West Lothian question. That is being dealt with separately, and I think wrongly, by the commission under the chairmanship of Sir William McKay because it is looking at it in the narrow context of how we can stop Scottish, Welsh and Northern Irish MPs voting on purely English legislation. Incidentally, it has not considered whether it would stop Scottish, Welsh and Northern Irish Peers voting on that legislation. That did not seem to have occurred to it until some Peers drew it to its attention. So that is being dealt with.

The other thing is that we have ended up with asymmetrical devolution. Scotland, or perhaps Northern Ireland, has the greatest amount of devolution—we could argue that—and then Wales. We then come to the West Lothian question and the problem about England. That is why I and others argue—and it is an increasing argument—that there should be a constitutional convention. My noble friend Lord McConnell said, and I think he is right, that there should be a purpose and an end in sight and that we should know where we are going and not just hope that something will emerge. That is why I am in favour of a federal United Kingdom. I have been arguing that in my own party and with the Liberal Democrats. The Liberals used to want one. I remember going to meeting after meeting where the Liberals would argue so cogently in favour of a federal United Kingdom. They should return to that, we should look at it and I hope others will look at it as the stable solution.

The other stable solution would be a centralised United Kingdom or the break up of the United Kingdom. I do not want either. I do not want a return to a centralised UK, and I do not want the break up of the United Kingdom, but a federal UK would be the way forward.

As other noble Lords have said, the UK constitutional convention could also look at this House, its purpose and its constitution. I very much agree with my noble friend Lord McConnell and the noble Lord, Lord Kerr, about the need for Scotland, Wales, Northern Ireland and, of course, England and the regions of England to be properly and sensibly represented in this place, giving this place some enhanced credibility. That needs to be looked at. We also need to look at the relationship of the United Kingdom Parliament, the Commons and the senate, or whatever we call it, to the devolved Parliaments.

Some people argue that a federal system would not work because England is too large. If you think about it, that does not make sense because if the English Parliament—let us say that there is an English Parliament—deals with devolved matters, it is autonomous in those devolved matters, as is the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, so it gets on with its own educational system or whatever. If you agree with a federal structure, if that is the way forward, the size of the different parts does not matter. Where it may matter is when it comes to the federal Parliament, and that is where you have to look at how some balance can be struck.

[Lord Watson of Invergowrie]

I support the point that my noble friend is making. Does he recognise that in Germany the Länder vary in size from Bremen with, I think, 700,000 people to North Rhine-Westphalia with about 20 million people, yet they still operate ostensibly on the same basis, which supports the point he is making?

[Lord Foulkes of Cumnock]

I am grateful to my noble friend—he is very much my noble friend—for that example. Pakistan is the same. Punjab is a large state in Pakistan. Ontario is a very large province in the Canadian federal system. It can work. One of the ironies is that the German constitution was formulated by British people. We give these sensible constitutions to other countries, but end up with a bit of a dog’s breakfast ourselves.

If there is one message that I want to come out from this debate today—it has come from all the contributions that have been made and, I predict, will come from others to come—it is that there is growing momentum in support of a UK constitutional convention. As my noble friend Lord Maclennan said, the Political and Constitutional Reform Committee of the House of Commons, chaired by Graham Allen, is now looking at it. People have been arguing it here. People outside have been arguing it. I think we should try to be the forerunner of a campaign for a UK constitutional convention. We need to get the party leaderships behind it. I have started to encourage the leadership of my party to adopt this as their policy and I will continue to do that. I hope that the noble and learned Lord, Lord Wallace of Tankerness, can say in his reply that he will encourage his party to adopt a UK constitutional convention, moving towards a federal structure, as his policy. He might even try persuading his coalition partners likewise; I know that it is not easy. It is only through cross-party agreement, if we can all see the way forward and the aim in mind, that something sensible will be achieved. My goodness, with the dog’s breakfast of a constitution we have at the moment, something sensible is long overdue.