Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Lord Keen of Elie Excerpts

Wednesday 20th July 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 26 May be approved.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the purpose of this draft order is to make changes to the fees payable in proceedings within the civil courts and tribunals. Specifically, the order introduces a new consistent fee-charging approach across the property chamber of the First-tier Tribunal. The current structure that operates in the tribunal is complex and inconsistent, with a range of different fees charged for some application types and no fees charged for others.

Our changes will simplify and standardise the approach, reducing the burden on the general taxpayer by raising the overall recovery rate in the tribunal from around 4% to around 10%, and sharing that burden more equally between all those who use the tribunal. The order will also uplift a number of fees charged in the civil and magistrates’ courts by 10%. This will include all those fees which are currently at full-cost recovery levels, including, for example, the fees for judicial review proceedings—but the uplift will not apply to fees in civil proceedings that are already set above cost. The uplift will also apply to judicial review proceedings heard in the immigration and asylum chamber of the Upper Tribunal to ensure that the fees in judicial review proceedings are consistent across jurisdictions. Finally, the order will change the default classification of two new appeal rights that have been created in the employment tribunals from a type B claim, which attracts the higher fee, to a type A claim, for which the fee is lower.

The normal rule is that where those who use a public service are charged a fee to access it, those fees should be set at a level designed to recover the full costs of the service. The civil and family courts have operated on that basis for a number of years. Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 provides that the Lord Chancellor may prescribe fees above cost, but requires that those fees are used to finance an efficient and effective system of courts and tribunals. This power was used for the first time in March last year to increase the fees for money claims, and again earlier this year to increase the fees for possession claims, for general applications in civil proceedings and to make an application for a divorce or a dissolution of a civil partnership. The power will be exercised again in this order to increase the fees in a range of civil proceedings by 10%, which will take those fees above cost-recovery levels. The remaining fee changes contained in this order will be made using the powers of Section 42 of the Tribunals, Courts and Enforcement Act 2007, given that, even after these changes, the fees will remain well below cost-recovery levels.

Why are the Government taking these steps and why are they necessary? The case for revisiting the fees that we charge in the courts and tribunals is based firmly on the need to ensure that Her Majesty’s Courts & Tribunals Service is properly funded in order to protect the crucial principle of access to justice. A fully functioning and properly funded justice system is the foundation of our democratic society. Not only does it provide everyone with the ability to redress their problems in an efficient and effective forum, it underpins our growing economy.

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[Lord Pannick (CB)]

My Lords, our new Lord Chancellor needs urgently to address the level of fees for access to courts and tribunals, for all the reasons given by the noble Lord, Lord Beecham, and in all the other speeches that the House has heard, after the speech of the noble and learned Lord, Lord Keen. Like the noble Baroness, Lady Kennedy of The Shaws, I welcome Liz Truss to her new role as Lord Chancellor. It is an important role. She has a statutory duty to protect the rule of law.

The noble Baroness, Lady Kennedy, mentioned that Liz Truss is a woman and expressed concern that that may have provoked some of the hostility. I should point out that, contrary to reports, Liz Truss is not the first female Lord Chancellor. Lord Campbell, in his 19th century Lives of the Lord Chancellors, included Queen Eleanor, wife of Henry III. In 1253, in the king’s absence abroad, Eleanor performed all the duties of the office, judicial as well as administrative, for the best part of a year. No doubt a 13th century Lord Falconer complained that Eleanor had not been trained as a lawyer and that she had not previously served as a senior Cabinet Minister. I am prepared to see how Liz Truss performs in her office before criticising her—or indeed criticising the Prime Minister for appointing her. The new Lord Chancellor’s attitude to court fees will for me be an important test of her commitment to the rule of law.

Like my noble and learned friend Lord Brown of Eaton-under-Heywood, I have appeared in previous debates on this subject. I do not have his complete record of attendance, but I have appeared on a number of these occasions in support of the noble Lord, Lord Beecham. I have explained repeatedly my concern about the Government’s policy on fees for courts and tribunals. It is a very simple matter. The high levels at which fees are set undoubtedly impede access to justice for legitimate claims. It is as simple as that; potential claimants cannot afford to vindicate their rights. The inevitable consequence is that debtors and rogue employers are encouraged not to meet their obligations because they know that they will not be taken to court or to the employment tribunal.

It is not appropriate for the Lord Chancellor of this country to stand in the doorway of the Royal Courts of Justice or of the employment tribunal and say to those who want to claim for unfair dismissal, or say to the small business person seeking to recover a debt, “You can’t come in unless you pay me a sum that greatly exceeds the cost of dealing with your case”. I recognise that Parliament has given the Lord Chancellor the power to do precisely that, but I do not think that it is wise for a Lord Chancellor to exercise that power. I am certainly not persuaded by the creative argument of the noble and learned Lord, Lord Keen, that the fee increases promote access to justice. That is a quite remarkable argument that your Lordships have heard this evening.

I am particularly concerned by the contents of the report published by the House of Commons Justice Committee on 14 June, entitled Courts and Tribunals Fees, HC 167. It is a remarkable document, and I have these questions for the Minister based on that report. First—and I echo the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this first question—does the Minister accept the principle stated by the Justice Committee in paragraph 46 of its report:

“Where there is conflict between the objectives of achieving cost-recovery and preserving access to justice, the latter objective must prevail”?

Does he accept that?

Secondly, does the noble and learned Lord accept the conclusion of the Justice Committee at paragraph 50 of its report that the senior judiciary was correct in its evidence to the Ministry of Justice that the research conducted by the ministry before formulating its policy on court and tribunal fees was inadequate to justify the ministry’s proposals?

Thirdly, does the Minister accept the Justice Committee’s conclusions at paragraphs 58, 59 and 79 of the report that it is “unacceptable”—its word—that the committee was “strung along”—again, the committee’s words—by the Government’s refusal to publish its own review findings on the impact of employment tribunal fees, and that those findings must be published now without any further delay? I have to say to the Minister that the Government’s conduct in not publishing review findings that they obtained several months ago on a matter of considerable importance is quite disgraceful. Will the Minister apologise on behalf of the Ministry?

It has been traditional in these regular debates on this subject—regular debates on the injustices perpetrated by a Ministry of Justice—for noble Lords to have the pleasure, and it has been a real pleasure, to listen to the eloquence of the noble Lord, Lord Faulks, in defence of the Government’s position. I am very pleased to see him, although he is not in his usual place but in his new place on the Conservative Benches. Your Lordships know that the noble Lord resigned last Thursday. All of us at the Bar have had the irregular experience of being asked to present hopeless cases. The noble Lord, Lord Faulks, did that with charm, good humour and sensitivity several times a month. We will all miss him in his role as the acceptable face of the Ministry of Justice—as Chris Grayling’s and Michael Gove’s representative on earth, in the real world, where small businesses seek to recover debts and unscrupulous employers evade their duty to make redundancy payments. For every unjust policy that the noble Lord had to defend in this House, I suspect that there were at least three other impossible policies that he had refused to believe in and fought off before breakfast every day.

The Government are very fortunate still to have the services of the noble and learned Lord, Lord Keen, but I suspect that even his skills of advocacy will be severely tested by the brief that he has inherited this evening. I shall listen very carefully to his defence of government policy before deciding whether to support the noble Lord, Lord Beecham, in the Lobbies should he decide to divide the House.

[Lord Keen of Elie]

My Lords, I begin by thanking the noble Lord, Lord Beecham, for his kind words. I am pleased to be here to speak on behalf of our new Lord Chancellor, and I speak with confidence. The noble Lord referred to a report or review that had been put in the hands of the Minister—and, for reasons that he elaborated on, he will appreciate that it is not in my hands. That review has—and it is a matter of considerable regret—taken longer than had been anticipated; but it will be published in due course.

One point of very real interest was the emphasis on fees in the context of the employment tribunal.

[Lord Pannick]

I am sorry to interrupt the noble and learned Lord so early, but is he going to say more about why the report is not now being published? What is holding it up? What is the delay?

[Lord Keen of Elie]

I understand that it has to be approved at a ministerial level before it can be published. The noble Lord, Lord Pannick, will appreciate that there has been something of a delay in respect of those matters. As I say, it will in due course be published.

Much has been made of the matter of employment tribunals and fees in employment tribunals and the issues that arise there. I suppose that one has to answer for the sins of one’s fathers. The present order addresses fees in the employment tribunal, and does so only in one respect, and that is to reduce them—and why that should be a matter of regret rather escapes me. The one matter addressed in this order with respect to employment tribunal fees is that, in respect of certain specified appeals, they should not by default go into type B of the schedule to the relevant order, but into type A, thereby attracting a much lower level of fee. So I find it difficult to understand why that provision is such a matter of regret.

Let me put the matter of costs and fees into context. The total cost of the courts and tribunals in 2015-16 was about £1.9 billion. The income recovery was about £700 million, leaving a shortfall of about £1.2 billion, and the question is where that should fall—on the taxpayer in general or on those who use the courts in part. With regard to employment tribunals, the total cost incurred was £66 million and the fee recovery was a gross £12.8 million. Why do I say gross? It is because there is a very effective fees remission system which meant that fees to the extent of £3.9 million were remitted. The majority of those individuals who secured remittance of fees were women. So that system is working: those who are vulnerable or in financial difficulty have access to the fees remission system.

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[Lord Lester of Herne Hill]

The noble and learned Lord said a little earlier that the question is whether the taxpayer or those who use the system should pay. Does he not understand that the problem is not those who use the system but those who cannot afford to use the system? Is he not in difficulty in making the kinds of points he has made when he says that the Government have not published the review of the system and will do so only in what he calls “due course”?

[Lord Keen of Elie]

I do not believe that that difficulty arises. I emphasise the point that I made earlier: if you look, for example, at the fees in respect of the employment tribunal, the gross figure is £12 million-plus; the sum remitted for those who could not afford the fees is £3.9 million. In other words, something of the order of 30% of employment tribunal fees came under the remittance scheme. It is working. It is effective. It is allowing access to those tribunals for those people who could not otherwise afford it.

I turn to the points made by the noble Lord, Lord Pannick, and the three questions which he posed in the context of the Justice Committee’s June report. We welcome the report from the Justice Committee. We will consider it in detail. We will consider its conclusions. We will respond to it as it requested, and we anticipate responding by September this year in accordance with the Justice Committee’s wishes. It would not be appropriate for me to anticipate that response at this time.

As the noble Lord, Lord Pannick, observed, there are instances in which some of our greatest advocates will take on the most hopeless of cases, and I applaud the noble Lord, Lord Pannick, for stepping forward to take into court the issue of Article 50 and its exercise in the context of our exit from the European Union. I look forward with interest to the outcome of his efforts in such hopeless endeavours.

[Baroness Kennedy of The Shaws]

Are the Government going to look at whether there are particular impacts that these changes are having on women? The Minister has not responded to that question.

[Lord Keen of Elie]

That matter is the subject of comment in the Justice Committee’s report, and we will respond to it. I again emphasise that from the figures we have it is clear that a large proportion of women qualify under the fees remittance scheme and to that extent have that relief.

[Lord Beecham]

My Lords, I thank all noble Lords who have spoken in this debate, and I thank the Minister for his reply. He has given something of a hostage to fortune in his reference to employment tribunal fees. It will be surprising—although not, I suppose, impossible—if the Government do not, after having considered this matter for a year so far, come up with some proposals to increase those fees, the extent of which remains to be seen.

It is extraordinary that the Minister made no substantive defence whatever to the criticisms of the process that were made by, among other bodies, the Justice Select Committee. I quote from its report:

“It will be evident from the chronology”,

regarding the time that had elapsed, which I referred to before,

“that there are some inconsistencies in the Government’s account of the progress of its review into the impact of employment tribunal fees. It is difficult to see how a Minister”—

not this Minister—

“can urge his officials to progress a review which they apparently submitted to him 4 months or more previously. And even if Ministers may now be discussing how to proceed … and recognizing that Departments other than the Ministry of Justice have an input into this, there can be no compelling reason to withhold from public view the factual information about the impact of the introduction of employment tribunal fees which will have been collated by the review. There is a troubling contrast between the speed with which the Government has brought forward successive proposals for higher fees, and its tardiness in completing an assessment of the impact of the most controversial change it has made … We find it unacceptable that the Government has not reported the results of its review one year after it began and six months after the Government said it would be completed”.

On that basis, and with respect to the Minister, we can have little confidence in the outcome of that aspect of the matter or in other decisions that have been made. In these circumstances, I wish to test the opinion of the House.

Scotland Bill

Lord Keen of Elie Excerpts

Monday 21st March 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

3: Clause 3, page 2, line 21, at end insert—
“The subject-matter of section 43(1AA) of the Representation of the People Act 1983.”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, before turning to the government amendments in this group, I should like to address some points that noble Lords have previously expressed in relation to Clause 2. This clause is to implement the provision in the Smith commission agreement that the Sewel convention should be put on a statutory footing. The Smith commission agreement did not suggest any change in the effect of the convention. The clause recognises that this Parliament will not normally legislate on a devolved matter without the consent of the Scottish Parliament, but the convention recognises that the decision whether to legislate is for this Parliament to take.

I have noted the points made by noble Lords who have made clear in previous discussion of this clause their view that the word “normally” is not a word sufficiently precise for a statutory restriction. Of course, we are not seeking, and nor are we able, to impose a restriction on parliamentary sovereignty, and it has also been made clear in discussion that the word is suitable for indicating how a discretion will be exercised. This clause is clearly intended to indicate that the discretion of Parliament to legislate for devolved matters will continue exactly as before and that it is not intended to subject that discretion to judicial control. I would add that the words “it is recognised” that appear in Clause 2 also reflect the continued sovereignty of the United Kingdom Parliament and that it is for Parliament to determine when a circumstance may be considered not normal. This is not a matter that the courts could meaningfully engage with.

I turn to a number of technical amendments that we have tabled to Clauses 3 and 5 of the Bill. Noble Lords will recall that we gave notice on Report that we would table these amendments, which are necessary to ensure that the clauses in the Bill relating to elections work as intended. Under the Bill, and in line with the Smith commission agreement, the timing of Scottish parliamentary elections is devolved to the Scottish Parliament, subject to the provision that Scottish parliamentary ordinary general elections may not be held on the same day as a UK parliamentary general election, a European parliamentary general election or ordinary local government elections in Scotland. We have tabled amendments to Clause 3 to improve the drafting of the part of the reservation relating to the timing of ordinary local government elections in Scotland. These amendments do not change what is reserved, but rather clarify the drafting to ensure that the reservation achieves the intended outcome—that an ordinary local government election in Scotland may not be held on the same day as ordinary general elections for the Scottish Parliament.

In addition, we have tabled amendments to Clause 5 of the Bill to improve the drafting of the new provisions to be inserted into Section 43 of the Representation of the People Act 1983. These provisions relate to the reservation of the timing of ordinary local government elections where they clash with the date of an ordinary general election to the Scottish Parliament, and provide a mechanism for the Scottish Ministers to change the date of the local government elections where such a clash occurs. The amendments improve and clarify the drafting of the provisions providing a mechanism for setting an alternative date.

Amendments 3 to 9 are technical amendments, which will ensure that there is clarity in the clauses in the Bill relating to elections and that they operate as intended. I beg to move.

[Lord McCluskey (CB)]

My Lords, I accept that Amendments 1 and 2 could not be moved, and will not be moved by me or by the noble and learned Lord, Lord Wallace of Tankerness. However, in the light of the Minister’s statement, I make a brief comment. It sounds to me very like a Pepper v Hart type of statement, designed to guide a court, when a court sits down to decide on an ambiguity in the interpretation or application of the provision. I am not at all sure that it will work, but it is no doubt the best that the Minister could come up with, even with the assistance from behind him of the noble and learned Lord, Lord Mackay of Clashfern, who is unfortunately unable to be here today. It does not solve the problem, but it is better than nothing.

The very fact of making the statement appears to be to concede the point that we were all making, that the provision in the clause is just a shibboleth, because Pepper and Hart statements have no locus at all unless in a court of law when a statement is invoked to assist the interpretation. However clear the statement is, it is not binding on the court, which has a duty to apply the words of the statute to determine what it means. However, I welcome it, while regretting that the Government did not pick up on the amendment proposed by the noble and learned Lord, Lord Wallace of Tankerness, which would have solved the problem within the statute itself, and we would not have needed this. However, in the light of the Government’s attitude, we have to leave it there.

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[Lord Campbell of Pittenweem (LD)]

My Lords, it may be stretching the tolerance of the House for a fifth Scottish lawyer to join in this discussion, so I will confine myself to two issues. The first is Pepper v Hart. It is well worth understanding just how limited the application of that doctrine may be. If the noble and learned Lord the Advocate-General is looking for an illustration of the approach recently taken by the Court of Session, he will find it in the case of British Petroleum v Edinburgh and Glasgow licensing boards.

Secondly, this is about the most political piece of legislation that one could possibly imagine. Within its terms is the opportunity for great political disagreement. It seems to me that the way in which the Government are now proceeding will in some respects justify that disagreement by leaving open an important porthole for those who wish to challenge the will of this House and indeed of the other place.

[Lord Keen of Elie]

My Lords, I am obliged for all the contributions from your Lordships in respect of this matter. I will not seek to repeat the arguments that were rehearsed so fully in Committee and on Report but I wish to make some observations.

The Smith agreement was explicit in its reference to putting the Sewel convention on a statutory footing, and that is what has been done—essentially as the noble Lord, Lord Stephen, noted—in a declaratory sense.

Mention has been made repeatedly of the case of Pepper v Hart. I am not going to go there in any detail, but the starting point for that case is ambiguity. A number of noble Lords indicated that there was no ambiguity. I am inclined to agree with that—but not necessarily for the same reasons. However, it appears to me that if there were room for ambiguity then of course Pepper v Hart might come into consideration.

Reference was made to the LCM—the legislative consent Motion—process and the suggestion that it should be incorporated into the clause. With respect, the LCM is a process of the Scottish Parliament, not of this Parliament—it is what the Scottish Parliament does in response to us applying the Sewel convention—and therefore it would not be appropriate to bring it into Clause 2.

There is then the question of what is or is not a devolved matter. This point—and indeed the difference that I have with the noble and learned Lord, Lord Wallace—is perhaps highlighted by the amendment that he originally proposed. The last part of that amendment says:

“For the purposes of subsection (8), the words ‘devolved matters’ means any matter not reserved to the United Kingdom Parliament under this Act”.

With respect, the Scotland Act 1998 is a great deal more sophisticated than saying that all matters listed in Schedule 5, which are reserved, are the only matters not requiring the consent of the Scottish Parliament. It entirely ignores the fact that, for example, it is not within the competence of the Scottish Parliament to modify any of the protected enactments listed in Part 1 of Schedule 4 to the Scotland Act.

[Lord Wallace of Tankerness]

Rather than read out his brief, will the noble and learned Lord acknowledge that I said that parts of Schedule 4 also exclude matters from being within the legislative competence of the Scottish Parliament? If I have not, with my own resources, got the amendment right, can the noble and learned Lord, with all the great resources that he has in his office—I know the expertise that he has there—say what definition he would give of “devolved matters”?

[Lord Keen of Elie]

There is no strict requirement to go into the definition of “devolved matters” at this stage, but it is perfectly clear from the amendment that the noble and learned Lord originally intimated that he contemplated it listing only the matters in Schedule 5 to the Act. I appreciate that in making observations in this House he qualified that statement, but the point is that the question of what is reserved goes well beyond Schedule 5 and includes all those protected enactments in Part 1 of Schedule 4.

The point that I was going to come to is this: one of the protected enactments is the Human Rights Act. This Government were elected upon a manifesto to address the Human Rights Act and to amend its terms by way of a Bill of Rights. That matter will be addressed in due course, but this is not the time or the place to consider what the implications of that may or may not be in the context of all the devolved Administrations in the United Kingdom. I would not consider it appropriate to go there.

[Lord Wallace of Tankerness]

I am not asking the Minister to tell us what is going to be in it but, if a proposed new British Bill of Rights confers new responsibilities on Scottish Ministers, does he believe that is a matter to which Devolution Guidance Note 10 would apply and that the United Kingdom Government would respect it as such and expect a legislative consent Motion in the Scottish Parliament? He can clear this matter up if he is prepared to say yes to that. If he is not, we can only suspect the worst.

[Lord Keen of Elie]

There is no reason to suspect the worst. What we have to do is await the relevant Bill of Rights. Then, when we have considered its terms, we shall see whether it does or does not intrude upon matters covered by DGN10. If it does, then DGN10 will be addressed, as it always has been. There is a clear and consistent record of the United Kingdom Parliament and this Government proceeding in accordance with DGN10 in the context of devolved issues. I do not anticipate, and have no reason to anticipate, that that will change in the future. However, I am not going to comment on a Bill that is not before this House and the terms of which have not yet been finalised.

In these circumstances it appears to us that Clause 2 is sufficient for the purpose of expressing, essentially, a declarator of the Sewel convention in accordance with the Smith commission agreement.

[Lord Purvis of Tweed (LD)]

Before the noble and learned Lord sits down, although that was perhaps his final point from the Dispatch Box on this, he said in response to my noble friend Lord Stephen that this is now stating in a declaratory way that the Sewel convention exists. However, it is worth reminding the House that paragraph 22 of the Smith commission report said:

“The Sewel Convention will be put on a statutory footing”,

not that it will be declaratory that it exists.

Disabled Persons’ Parking Badges (Scotland) Act 2014 (Consequential Provisions) Order 2016

Lord Keen of Elie Excerpts

Wednesday 16th March 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 22 February be approved.

Considered in Grand Committee on 14 March.

Motion agreed.

Disabled Persons’ Parking Badges (Scotland) Act 2014 (Consequential Provisions) Order 2016

Lord Keen of Elie Excerpts

Monday 14th March 2016 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Disabled Persons’ Parking Badges (Scotland) Act 2014 (Consequential Provisions) Order 2016.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I beg to move that the draft order laid before the House on 22 February 2016 now be considered. The statutory instrument before us is made under Section 104 of the Scotland Act 1998 and in consequence of the Disabled Persons’ Parking Badges (Scotland) Act 2014, which I shall refer to as the 2014 Act and which makes provision about badges for display on motor vehicles used by disabled persons. These are commonly referred to as blue badges.

One of the main aims of the 2014 Act is to help tackle blue badge misuse by providing additional powers to local authorities and the police to enforce the blue badge scheme in Scotland. The 2014 Act strengthens enforcement powers, including the ability to cancel or confiscate a badge in certain circumstances, and provides for security features of the blue badge format to be approved administratively by the Scottish Ministers. While eligibility for badges, scheme administration and enforcement measures vary between Scotland, England and Wales, there is overall agreement between each of the Administrations and their respective local authorities to work together on the common parts of the blue badge scheme. This has seen the creation of a shared database, used by local authorities for the production of badges, which allows local authorities to enforce the scheme across Great Britain.

The Disabled Persons’ Parking Badges (Scotland) Act 2014 (Consequential Provisions) Order 2016, which I shall refer to as the draft Section 104 order, will ensure consistency throughout Great Britain with regard to the validity of blue badges issued in Scotland and give full effect to the 2014 Act. This will produce certain practical results so that, for example, a badge issued by a local authority in Scotland will, for the purposes of the law in England and Wales, be in valid form if it meets the new requirements being provided for in Section 1 of the Act. This will also ensure that enforcement officers are able to confiscate badges which are being misused and have been cancelled by a local authority in another area of Great Britain.

I will now seek to set out for the Committee what the order seeks to achieve and why it is felt to be an appropriate and sensible use of the powers under the Scotland Act 1998. Section 104 of the 1998 Act provides for subordinate legislation to be made by the UK Government which contains provisions that are necessary or expedient in consequence of any provision made by, or under, an Act of the Scottish Parliament. In this case, provision is required in consequence of provision made by the 2014 Act, which received Royal Assent on 24 September 2014.

The order extends to the law of England and Wales the effect of certain amendments made in Scots law by the 2014 Act. The amendments in question are amendments to Section 21 of the Chronically Sick and Disabled Persons Act 1970, which provides for disabled people and their carers to be issued with badges entitling them to certain parking concessions. Section 1 of the 2014 Act changes the rules about the form that a badge issued in Scotland must take if it is to be recognised as a valid badge. Badges issued in Scotland are recognised in England and Wales. Article 3 of the order therefore reproduces in the law of England and Wales the effect of Section 1 of the 2014 Act, so that on both sides of the Scottish-English border the same rules will apply for the purpose of determining whether a badge issued in Scotland is in valid form. I should add that the same applies in respect of Wales.

By virtue of Section 2 of the 2014 Act, Scottish local authorities are able to cancel badges which they have issued in certain circumstances. A badge which has been cancelled by the Scottish local authority that issued it should not be recognised as a valid badge in England and Wales. Accordingly, Article 3(3) of the order extends the effect of Section 2 of the 2014 Act so that the cancellation of a badge by a Scottish local authority is effective in the law of England and Wales.

Article 4 of the order fixes a cross-reference in subsection (8C) of Section 21 of the 1970 Act. That subsection glosses references to local authorities elsewhere in Section 21 so that they fall to be read as including the Secretary of State. The gloss is stated not to apply in relation to specified subsections. One of the subsections specified is subsection (4BB) which, in the law of England and Wales, was inserted by Section 94 of the Traffic Management Act 2004 and defines the expression “enforcement officer”. This is the subsection (4BB) to which subsection (8C) is intended to refer. As a matter of Scots law, however, a different subsection (4BB) was inserted by Section 73 of the Transport (Scotland) Act 2001. It does not define the expression “enforcement officer” for the purposes of Scots law. Instead, the Scottish definition of “enforcement officer” is to be found in the version of subsection (8A) inserted by Section 5(4) of the 2014 Act. Article 4 of the order amends subsection (8A) so that it does not gloss the reference to a local authority which appears in the definition of “enforcement officer” in both the law of Scotland and of England and Wales.

The need for and content of the draft Section 104 order has been agreed between the United Kingdom and Scottish Governments. The Department for Transport, which has responsibility for the legislation which this order affects, has been consulted throughout the drafting of the order. All provisions contained in this order have the approval of the Department for Transport and of the Scottish Government.

The statutory instrument before the Committee demonstrates this Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope that your Lordships agree that the order is an appropriate and sensible use of the powers in the Scotland Act 1998, and in particular of Section 104. I commend the order to the Committee.

[Lord McAvoy (Lab)]

My Lords, I thank the noble and learned Lord, Lord Keen of Elie. He showed off his legal skills in presenting the order. I think that I got left behind at the fifth subsection of the seventh Act that he mentioned, but I think that I managed to catch up. If I were a suspicious person, I would think that he was trying to lead me up the highways and byways, but I have studied this order carefully and I do not think that even he is up to mischief with it.

As the Minister has explained, the Scottish Parliament passed a Disabled Persons’ Parking Badges (Scotland) Act and the order will ensure that there is consistency across Great Britain for the badges issued in Scotland. It will mean that the badges issued by Scottish local authorities are recognised in England and Wales. We supported the objectives of the Act when it went through the Holyrood Parliament and we support this measure today. We are committed to making towns and cities more accessible for the disabled in Scotland and more widely, as was shown recently by our amendment in relation to parking on pavements made to the current Scotland Bill. We know that this issue causes real problems for those with disabilities. We again record our gratitude to the Government for accepting our argument and bringing forward the changes necessary to ensure that the Scottish Parliament can act on this issue.

This order tries to establish consistency throughout the three countries. The noble and learned Lord mentioned that, on the common parts of the legislation, the three countries were working together. Are there any differing parts of the legislation left? To get consistency would need careful wording to make sure that there are no discrepancies or loopholes left.

Paragraph 8.6 of the Explanatory Memorandum points to the Scottish Government’s engagement with multiagency groups,

“to bring forward new and focussed ways to educate badge holders”.

My colleagues in the Scottish Parliament have raised this issue and I will ask the Minister about it today. Do the UK Government intend to carry out the same multiagency work and will they be issuing guidance to local authorities in England and Wales about this order?

There is nothing minor about legislation affecting people in the disabled community, and this order did not have any real public consultation. I wonder if the assumption there was that it had broad support; let me hasten to add that it would be a reasonable assumption. On the other hand, it is known that the Great British public, and the Scottish public, can always offer up something. Can the Minister say who was consulted by the Department for Transport and what advice they offered? Perhaps the Minister would consider committing to placing a copy of the evidence in both Libraries.

However, in the great scheme of things these are minor quibbles. We support the order, but I would be grateful if the noble and learned Lord could address some of my specific points. If there is anything new there that has not been covered, it would of course be acceptable to receive that in writing.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord McAvoy, for his observations with regard to the order.

As regards the commonality of the scheme, the only differences which would potentially exist would be on entitlement to badges, which is a matter for each jurisdiction to determine, and the form of the badges themselves, which may differ. What the order will ensure, by way of the 2014 Act, is the enforceability of orders made with respect to those badges. That is what I have to say on commonality.

On the matter of consultation and guidance, I am advised that the UK and Scottish Governments worked closely together with regard to the provisions in the order. It is intended that the department—well, something is intended. Perhaps the noble Lord would allow me a moment.

I am advised that steps will be taken to ensure that the Department for Communities and Local Government is properly sighted on the order so that it may then make an appropriate decision as to whether guidance should be issued. I apologise for the delay on that point.

I am also advised that, as with all Section 104 orders, relevant departments and Ministers were consulted and gave their consent to the making of the order. I do not have further detail as to what was said by or on behalf of the Department for Transport, but perhaps I can arrange to write on that point.

Unless there is any further point that I have not covered, I will leave the matter there.

Motion agreed.

Scotland Bill

Lord Keen of Elie Excerpts

Monday 29th February 2016 Lords Chamber

[Lord McFall of Alcluith]

Yet again, the noble Lord has got it wrong—it was me who said that. However, let us finish on a positive note tonight. First, I would like to thank the Delegated Powers Committee for its report, because it was very clear at the beginning that the Scotland Office provided a delegated powers memorandum, the explanation of which was inadequate. As a result of that, I thank the noble and learned Lord, Lord Hope, for tabling these amendments, and the noble Lord, Lord Norton of Louth, who made an excellent speech last time on the Henry VIII powers.

The Law Society of Scotland was mentioned, and Michael Clancy has been sitting in the box for many weeks, although he is not there tonight. He has been helping us—and I well remember taking over the shadow Home Affairs responsibility in the 1990s for the Labour Party, when Michael was helping one and all political parties. So I thank him, too.

As the noble Lord, Lord Forsyth, said, it is better to have half a loaf than none. It is important to say that the Government have not outlined totally why the consequential powers are required in Parts 1, 4, 5 and 6, in every other respect. Perhaps the Minister will at this stage give your Lordships’ House some indication of the type of saving powers that the Government expect to propose. As the noble and learned Lord, Lord Hope, said in Committee, if we are going to keep faith with what we are trying to achieve, the Government have to go that step further. With those comments, I commend the work that noble Lords have done and the response that the Government have given to the suggestions.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I am obliged to your Lordships and particularly grateful to the noble and learned Lord, Lord Hope of Craighead, for his contributions on this matter. As will be appreciated, the powers in question can be used only in consequence of provisions in the Bill. The power to make consequential, transitional and saving provisions of this type are not exceptional or unusual in primary legislation of this ilk. Indeed, Section 105, together with Section 113, of the Scotland Act 1998 provided a similar power. The Scotland Act 2012 also contained consequential powers.

When consequential amendments were identified as necessary during the course of preparation of the Bill, they have been included in the Bill. For instance, Clause 10 makes provision in consequence of the clauses relating to elections. However, given the nature of the Bill, involving significant devolution of legislative and executive powers, it is difficult to anticipate the full extent of the consequential changes required when the provisions are commenced to put them on the face of the Bill. Therefore, it is possible that, following Royal Assent, legislation may be needed to amend and deal with the consequent provisions of the Act. In those circumstances, the Government considered it both necessary and appropriate to include this provision in the Bill.

However, following the views of the Regulatory Reform and Delegated Powers Committee, and those expressed in this House in Committee, we have brought forward an amendment to Clause 68. The effect of the amendment is that the power to amend future enactments, future prerogative instruments, any other future instruments or documents and Welsh and Northern Irish legislation, whenever made, will apply only to Part 3 of the Bill, the only part of the Bill dealing with welfare provisions. Amendments 62A, 62C, 65A and 65B limit the scope of the consequential, transitional and saving power as it applies to Parts 1, 4, 5 and 6 of the Bill. I hope that reassures noble Lords on the proper scope of these provisions.

Amendment 71A provides that Clauses 3 to 12 do not commence automatically two months after Royal Assent, but instead come into force on such a day as the Secretary of State may appoint by regulations. We have identified some consequential and savings provisions that may be required, and they require careful co-ordination with commencement of Clauses 3 to 12. They are largely concerned with electoral law. Commencement by regulations will facilitate such co-ordination. We do not expect to delay commencement for too long after the Scottish parliamentary elections have taken place in May 2016. In these circumstances, I invite noble Lords not to move their amendments and to accept the Government’s amendments.

Amendment 61 withdrawn.

Scotland Bill

Lord Keen of Elie Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord McAvoy (Lab)]

My Lords, for the removal of any doubt, I do not support any amendments in this group. But I am pleased to be given the chance to try again to pronounce the name of the noble Lord, Lord Louth of Norton—I have done it again—the noble Lord, Lord Norton of Louth, because he is a profound constitutional expert and he has my total admiration and respect, and I apologise for the mix-up.

The original draft of Clause 1 conveyed the permanency of the Scottish Parliament and the Scottish Government as institutions but our amendments put their permanency beyond any doubt and put the decision of whether they should be permanent in the hands of the Scottish people. We do not want any change to this aspect of the Bill. It is with some trepidation that I enter this debate, with so many constitutional experts, lawyers and esteemed legal people, but there we are; I might bring the perspective of an ordinary Scottish person without having all those grand titles—which are all deserved, I hasten to add.

I do not think we should spend too long on this aspect of the Bill. We support the Scottish people having the final say on any of these matters. Without going too much into the history of things, in 1707 Scotland entered the United Kingdom as a full country. It did not sacrifice totally its right to have its own say. We entered as an equal partner. I think we have played our part, pro rata, on an equal basis. I believe strongly that that should be the case. The sovereignty of the Scottish people should be recognised. It is not a coincidence that one of our monarchs in Scotland, Mary, Queen of Scots, was not known as the Queen of Scotland. Of course, her final legacy was that every monarch of Scotland and the United Kingdom since her death has been her direct descendant. That is totally in tune with the Scottish people. The Scottish people should have the say. I am sorry to say it but particularly the amendment tabled by the noble Lord, Lord Cormack, to take everything away from the Scottish people is just not acceptable or realistic. Realpolitik has been mentioned and that is absolutely right.

I do not want to feed the flames but I say to the noble Lord, Lord Empey, that he could have been a bit more careful with his words, bearing in mind the history of Northern Ireland. My party and I—and, I believe, the Government—are not feeding any flames. I believe in the merits of what we have here, not just as expediency or something passed down from on high. I believe firmly in it and if any of these amendments are pressed, we will be voting against them.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, perhaps I may begin with a material concession. When the noble Lord, Lord Empey, referred to a capable Minister on the Front Bench he was clearly referring to my noble friend Lord Dunlop.

I thank noble Lords for their careful and detailed consideration of Clause 1, which expresses in law the understood position that the Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements. I will endeavour to respond to each of the points made and, in doing so, I thought that it would be helpful to reflect on the adjustments made to this clause during the Bill’s passage through Parliament.

The Smith commission said that the United Kingdom’s legislation,

“will state that the Scottish Parliament and Scottish Government are permanent institutions”.

In the draft legislation which the Government published in January 2015, the Scottish Parliament and the Scottish Government were recognised as permanent parts of the United Kingdom’s constitutional arrangements. At that stage, the clause did not contain a provision on a referendum. This drafting was retained when the Bill was introduced to Parliament in May 2015. Detailed feedback was then received on the clause during the Bill’s passage through the other place and from others such as the Scottish Parliament’s Devolution (Further Powers) Committee. The Government reflected carefully on this feedback and on 18 September, the Prime Minister announced the Government’s intention to include a referendum provision in the clause to strengthen the provision and underline our commitment to the Scottish Parliament and the Scottish Government. Following refinement of the drafting, the clause as it now appears was inserted into the Bill on Report in the other place.

I pause to observe in response to the observations of the noble and learned Lord, Lord McCluskey, that I am not aware of any understanding between the United Kingdom Government and the Scottish Government to the effect that no amendment will be allowed to the provisions of Clause 1 or to any other part of the Bill. The clause was also subject to substantial debate during our Committee in December.

I turn to Amendment 2, tabled by the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Norton of Louth. This amendment considers the specific wording of subsection (3) of the new section in Clause 1. Following our deliberations in Committee we have reflected carefully on this amendment, which I believe seeks to clarify details of the operation of such a referendum. None the less, our view remains that the current wording of the clause delivers the outcome needed effectively, as it reflects that in 2014 the people of Scotland voted to remain in the United Kingdom and that that would mean a commitment to two Parliaments. New subsection (3) ensures that if the Scottish Parliament and Scottish Government were ever to be abolished, which of course is a scenario that no one is envisaging, the people of Scotland would need to vote in a referendum to that effect.

The noble Lord, Lord Cormack, spoke to Amendment 3, which would replace the requirement for a decision of the people of Scotland in a referendum with a requirement for a two-thirds majority in a vote of the House of Commons, in which 75% of Scottish Members of Parliament voted in favour. I am grateful to the noble Lord for the points he has made and recognise his desire to underline the centrality of this Parliament in determining the constitutional arrangements of the United Kingdom. However, it remains our view that it is right to include provision for a referendum of the people of Scotland in the clause to strengthen the political statement, and to underline the commitment of this Parliament and this Government to the Scottish Parliament and the Scottish Government.

The referendum provision rightly reflects the importance of the people of Scotland in determining Scotland’s constitutional future. In the referendum in 1997, the people of Scotland overwhelmingly supported the creation of a Scottish Parliament. In the independence referendum in 2014, they reaffirmed that they wanted to have two Parliaments by voting to remain within the United Kingdom.

--- Later in debate ---

[Lord McCluskey]

Before the Minister moves on, may I ask just one question? In the earlier debate, I asked whether the words “the people of Scotland” included Andy Murray, the tennis player, and he could not answer. The noble Lord, Lord Norton of Louth, has suggested a simple amendment that would make it clear that the persons entitled to vote are not the people of Scotland—which is a slightly meaningless phrase—but those entitled to vote as electors in a local government election in Scotland. What is wrong with accepting that?

[Lord Keen of Elie]

As I indicated, we are dealing with an entirely hypothetical situation. Should that situation ever materialise, the terms of the referendum to be held would be determined according to the circumstances in place at that time. It would not be appropriate to anticipate the circumstances of such a referendum, which might be many millennia in the future. It is therefore left open in these terms.

I turn to the amendments moved by my noble friend Lord Forsyth of Drumlean. The points he has raised in them are those he made in Committee in December, and I assure him that we have continued to reflect carefully on the points made at that time. My noble friend has focused on whether Clause 1 impinges on the sovereignty of this Parliament. I thank him for his consideration of this point but must respectfully disagree that there is any question that it does. Constitutionally, the United Kingdom Parliament cannot bind a successor Parliament: the sovereignty of Parliament remains. The purpose of paragraph 21 of the Smith commission agreement, and of Clause 1 in the Bill, is not to change the constitutional position but to reflect in legislation the political understanding that already exists. The clause thus delivers the Smith commission agreement while respecting the United Kingdom’s constitutional arrangements.

Amendment 1 would reinsert the words “recognised as”, which were removed from Clause 1 by government amendment on Report in the other place. The Government have been quite clear throughout that there has never been any question that the Scottish Parliament and Scottish Government are anything other than permanent. However, we have listened to feedback on the clause, and it was felt appropriate to amend the clause to take account of the observations made. The criticism levelled at the clause was that the provision was weak. The Government have strengthened the provision to demonstrate the commitment of the United Kingdom Parliament and Government to the Scottish Parliament and to the Scottish Government.

Amendment 4, tabled by my noble friend, provides that the abolition of the Scottish Parliament and Government would have to be agreed by United Kingdom-wide referendum. The referendum provision in Clause 1 rightly reflects the importance of the people of Scotland in determining the existence of the Scottish Parliament. It is important to be clear that there are no circumstances under which the abolition of the Scottish Parliament and Scottish Government is envisaged. However, in responding to the points raised by my noble friend, I state that, in that entirely hypothetical circumstance, this Parliament would of course play its full and proper role, as I mentioned previously.

Amendment 5 would state in the Bill that Clause 1 does not limit the sovereignty of the United Kingdom Parliament. Again, I hope I have already sufficiently addressed that point. Clearly, the sovereignty of this Parliament remains, and is unhindered by the provisions. I therefore urge noble Lords not to press their amendments.

[Lord Hope of Craighead]

Before the Minister sits down, I wonder whether he can help me on one point. I made it clear in Committee that the amendments I proposed to this part of the Bill were based on recommendations of the Scottish Government, which were made plain in June last year. The wording of the amendments is not my creation; it comes from Edinburgh, from people who were studying the Bill and trying as best they could to clarify the points they thought needed clarification.

The noble and learned Lord, Lord McCluskey, has drawn attention yet again to the obscurity of the phrase, “the people of Scotland”. One of the virtues—it may be small, but it is there—of my amendment is that it makes clear that it is a referendum of the people in Scotland. I simply cannot understand why the Minister is not prepared to make some concession to clarify that matter. To go back to what the noble Lord, Lord Empey, said, I should have thought that the Government would take on board collaboration between the two Governments to try to improve the Bill and achieve as much clarity as possible. I really am mystified why the Minister is so stubborn and will not accept the need for some further clarity.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Hope of Craighead. It determines clearly and unambiguously that there can be no question of any unseen, secret understanding between the United Kingdom Government and the Scottish Government when his proposals in the amendments have their source in Scotland, with the Scottish Government. That perhaps puts that in its place.

On the question of the referendum, I reiterate the point that I made earlier: this is a wholly hypothetical situation.

[Lord Forsyth of Drumlean]

Will my noble and learned friend deal with the point about the people of Scotland, as opposed to the people in Scotland?

[Lord Keen of Elie]

I am obliged to my noble friend for reminding me of the question. As I said earlier, we are dealing with a wholly hypothetical situation. It is not envisaged that this will ever arise, but in the event that it does, the question of who will be engaged in the referendum and the manner in which it will be conducted will be determined at that time according to the circumstances that exist at that time, rather than by some predetermination, perhaps millennia earlier. That remains the Government’s position on that point.

[Lord Forsyth of Drumlean]

My Lords, I have come to the view that the noble Lord, Lord Empey, tactfully suggested—that we are actually wasting our time. I beg leave to withdraw the amendment.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

My Lords, I believe that the House is ready to hear from the Minister.

[Lord Keen of Elie]

I can say that the Whip did not consult me on that proposition.

I am grateful for the detailed consideration that has been given to this clause and, indeed, for the time that has been given up by a number of noble Lords in meeting both me and my noble friend Lord Dunlop to discuss aspects of the clause.

I begin by considering the extent or scope of the provision with which we are dealing. It touches on amendments moved by the noble and learned Lords, Lord Hope, Lord McCluskey, Lord Wallace and Lord Mackay of Clashfern, and the noble Lords, Lord Norton and Lord Stephen.

[Noble Lords]

What about Lord Cormack?

[Lord Keen of Elie]

I will come to that in a moment because normally I would come to “normally” when I am addressing “normally”, and that is when I will address the noble Lord, Lord Cormack. I would not want him to feel out of this.

The Smith commission agreement stated:

“The Sewel Convention will be put on a statutory footing”.

That is precisely what Clause 2 achieves. Let us step back for a moment to the Sewel convention. What did Lord Sewel say? He said that,

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/98; col. 791.]

Of course, the word “normally” was important. I will come back to that because it is a word that respects the sovereignty of the United Kingdom Parliament. Without it, you might have had a provision that intruded very materially on the sovereignty of that Parliament. That was what was said at the time in 1998.

The noble Lord, Lord Norton, observes that that is not a convention in the conventional sense; and, of course, he is right because a convention is something that grows up and is invariably applied or employed. Where you have the word “normally”, you are saying that there can be a qualification or an exception, so, strictly speaking, in constitutional terms, the Sewel convention is not a convention. But, you know, by convention it became a convention. And that is where we are. Over a period of years, what was referred to as the Sewel convention was understood not only by the United Kingdom Parliament but also by the Scottish Government and by the Civil Service. They understood and applied the Sewel convention, albeit that in strict constitutional terms it was not a convention. They operated it successfully and without difficulty until now. Then the Smith commission decided that the Sewel convention should be put on a statutory footing. Of course, the technical difficulty is this: if you express a convention in statutory terms, it ceases to be a convention.

--- Later in debate ---

[Lord Stephen]

Does the Minister accept that since 1999 the practice has been that if there is a proposal to alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers, the convention is that a Motion should go before the Scottish Parliament in relation to that matter? In other words, the convention on these separate issues has been that there would be a decision of the Scottish Parliament on that issue.

[Lord Keen of Elie]

I cannot accept that because of the language employed. It was not the convention that dictated that; it was a practice that grew up as a consequence of the convention having been entered into. It reflected, for example, working note DGN 10. That is why I say there was a clear understanding by the parties not only in 1999 but in October 2013 of what was meant strictly by the Sewel convention. I also commend to the noble Lord the heading to paragraph 22 of the Smith commission report, which was also agreed to by the parties to the Smith commission. It makes it abundantly clear what the parties understood was meant in this context by the Sewel convention.

I quite appreciate that over the years practice has developed and no doubt practice will continue to develop, which is one reason you do not want to freeze practice in statutory form. What you want to express in statutory form is the strict requirement of the Sewel convention and its scope. It is important to remember that by doing that we preserve not only the convention as it is understood and has been understood but the sovereignty of this Parliament. For this Parliament is sovereign and can legislate for devolved matters, just as the Scottish Parliament can legislate for devolved matters.

The matter that Lord Sewel was addressing when setting out the principle that this Parliament would not normally legislate with regard to devolved maters without the consent of the Scottish Parliament was this: to make it clear that, despite Parliament’s sovereignty, the devolved legislature would be left to get on with the business of legislating in devolved areas. No one wanted the prospect of legislative ping-pong between the two Parliaments. That is also set out—as I say, quite clearly—in the memorandum of understanding, as it has been revised on seven occasions and agreed to by the United Kingdom Government and the Scottish Ministers.

The question of the words “not normally” was raised. The noble and learned Lord, Lord McCluskey, among others, pointed out that the word would be justiciable. Of course, all the words of a statute are justiciable in the sense that you can go to a court and ask the court what it believes they mean. But it is not the word that is not justiciable, it is the issue. The question of whether the United Kingdom Parliament can legislate in devolved areas is not justiciable. It is for the United Kingdom Parliament to decide whether on some occasion it will do what it normally, usually or generally does, or will not do so, for it is a sovereign and supreme Parliament. That underlines the importance of the words “not normally” and to remove them from this clause would be to impinge on the sovereignty of this Parliament in a most unprecedented and extraordinary manner.

[Lord Forsyth of Drumlean]

I am listening very carefully to my noble and learned friend and basically he is saying that the Sewel convention is working perfectly well; everybody understands what it is. We are hearing from very expert opinion that the clause as it stands is rubbish and is subject to judicial challenge, so why does he not just drop the clause and stick with what is working, which is the convention as it exists?

[Lord Keen of Elie]

I am obliged to my noble friend for his invitation. I refer to the recommendation of the Smith commission report, which was that it should be put on a statutory footing, and this Government are determined that it will be put on a statutory footing. I hope that answers my noble friend’s inquiry.

That brings me to my noble friend’s Amendment 11, which he spoke to but followed up with the comment, “You can ignore my amendment”. I would like to treat that as a precedent in the case of my noble friend but not on this occasion. If he has spoken to his amendment, I have to respond to it.

[Lord Forsyth of Drumlean]

That is a novelty.

[Lord Keen of Elie]

Given the noble Lord’s invitation to ignore it, it is more than a novelty; it is rather generous. Be that as it may, I come back for a moment to the question of justiciability. The noble and learned Lord, Lord McCluskey, and others of your Lordships have sought to ensure that the provisions of Clause 2 will not create a justiciable right. I understand and appreciate the reasoning behind that amendment, but our position remains that it is not necessary because Clause 2 cannot and does not create a justiciable right. I emphasise that it is not a question of whether the word “normally” is justiciable, as every word of a statute is in that sense capable of being interpreted by a court. It is the issue that is not justiciable. I return to a point that I mentioned briefly—

[Lord Lester of Herne Hill (LD)]

I had not intended to interrupt until I heard the noble and learned Lord just now. Since the doctrine of parliamentary sovereignty is simply a rule of recognition by the Queen’s courts that Parliament should be sovereign, is it not also a matter for the Queen’s courts and not for Ministers or government, or even Parliament, as to what is or is not justiciable?

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Lord. I would suggest that it is a moot issue because there have been occasions where this Parliament has expressly stated that an issue will not be justiciable, but of course the courts themselves will then look at that exception to see whether it is enforceable and lawful. There is that further point, so it is a further layer placed upon the issue by this Parliament but it is not conclusive. I believe there have been occasions where the courts have looked at statutory provisions in which Parliament has purported to say, “This is not a matter for the courts”.

[Lord McCluskey]

Then why does the Minister not simply accept Amendment 12, which says that,

“the decision as to whether or not the circumstances are such as to allow the Parliament of the United Kingdom to legislate with regard to any devolved matter shall be a decision for that Parliament to take, and shall not be justiciable in any court of law”?

[Lord Keen of Elie]

I am obliged to the noble and learned Lord and I can express it only in these terms. It is the Government’s considered position that the clause implicitly determines that point in any event. It would therefore not be necessary to express it in the terms proposed in the amendment.

[Lord Wallace of Tankerness]

The Minister says that the Government think that it is implicit in the clause. What is the problem in making it explicit? It would be interesting to consider whether their view is that there is a problem in making it explicit, because if there is not it would be very much to their advantage to accept the amendment of the noble and learned Lord, Lord McCluskey.

[Lord Keen of Elie]

I note the observations of the noble and learned Lord, Lord Wallace, but I can observe only that it is not appropriate to layer legislation with unnecessary detail and that if the matter is to be regarded as implicit in the present clause, it would be inappropriate to add a further clause. I cannot elaborate upon the point at this stage.

The concluded position of the Government is that Clause 2 as drafted delivers what was required by the Smith commission agreement by placing the Sewel convention, as it is properly understood, on a statutory footing. It is in these circumstances that I invite your Lordships to withdraw or not move their amendments.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to all those noble and learned and noble Lords who have supported my Amendment 7. I am also extremely grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord McCluskey, for the points they made in support of Amendment 12, which in a way hangs together with it, because they have identified a crucial issue before us.

With all due respect to the Minister, he cannot get away with simply declaring that the “issue” is not justiciable. He has chosen the word “issue” as meaning something different, but the same point arises. The noble Lord, Lord Lester of Herne Hill, identified the point precisely: there is a crucial difference between the position of Parliament legislating—and Ministers declaring what words mean when they legislate—and the position of the courts. The courts will assert their right to interpret legislation according to the meaning of the words as they judge them to be. As the noble and learned Lord, Lord McCluskey, has said, the courts cannot close their door to arguments. People will bring arguments before the court, and when an argument is before the court it has to decide on it. The Minister simply cannot get away with the idea that we can be assured that this issue will never be before the courts and require determination.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

15: Clause 3, page 2, leave out lines 17 and 18 and insert—
“( ) Omit the words from “The franchise at local government elections” to the end of the Exceptions and insert—”

[Lord Keen of Elie]

My Lords, I shall first address Amendments 15 to 21. Under the Bill, and in line with the Smith commission agreement, the timing of Scottish parliamentary elections is devolved to the Scottish Parliament, subject to the provision in the Bill that Scottish parliamentary ordinary general elections may not be held on the same day as UK parliamentary general elections, European parliamentary general elections or local government elections in Scotland.

Following a request from the Presiding Officer of the Scottish Parliament, the UK Government agreed to bring forward an order under Section 30 of the Scotland Act, rather than use the Bill, to give the current Scottish Parliament the power to determine the length of the next Scottish Parliament following the poll in 2016. The order devolved to the Scottish Parliament power to legislate on the date of the first Scottish parliamentary ordinary general election after the 2016 poll. Following approval in the Westminster Parliament and the Scottish Parliament, the order was made by Her Majesty in Council on 8 October and came into force the following day. The Scottish Elections (Dates) Bill, currently before the Scottish Parliament, provides for the Scottish Parliament ordinary general election scheduled for 7 May 2020 to be moved to 6 May 2021.

We have tabled a number of technical amendments to make changes to a number of clauses in the Bill that are required as a result of the Section 30 order. Essentially, these amendments revoke the Section 30 order and remove provisions from the Scotland Act inserted by the order, which will be unnecessary as they overlap with provision made by the Bill. The area of legislative competence being devolved to the Scottish Parliament by the Bill is such that the Scottish Elections (Dates) Bill will still be within the legislative competence of the Scottish Parliament following the revocation of the Section 30 order. Additionally, we have tabled an amendment to Clause 5(2) to improve the drafting of this provision in order to ensure that it operates as intended.

We have also tabled an amendment that removes a reference in Clause 10 to a provision of the Scottish Parliament (Elections etc.) Order 2010 which is now unnecessary as this instrument has been revoked by the Scottish Parliament (Elections etc.) Order 2015 that was made by Scottish Ministers and which came into force in December 2015.

In addition, I wish to give notice that the Government consider that drafting improvements are required to the reservation of the timing of ordinary local government elections in Scotland where the poll would otherwise be held on the same day as an ordinary general election for the Scottish Parliament, and to some provisions in Clause 5 relating to this reservation, to provide clarification and ensure that the drafting of these provisions operates as intended. As a result, the Government intend to table amendments to clarify and improve the drafting of these provisions at Third Reading.

Amendments 15 to 21 are technical amendments which will ensure that the clauses in the Bill relating to elections operate as intended.

I now to turn to Clause 11, which contains the supermajority requirements and acknowledge the input and assistance of the noble and learned Lord, Lord Hope of Craighead, on this matter. I thank him for his willingness to discuss this matter and to propose improvements to the provisions, which are reflected in government Amendments 23 to 26.

Clause 11 requires that the Scottish Parliament must pass certain legislation by a two-thirds majority. Government Amendments 23 to 26 to this clause will enable a Bill in the Scottish Parliament to pass to Royal Assent if the Presiding Officer of the Scottish Parliament decides that a simple majority is required, the Bill is passed with a simple majority but is referred to the Supreme Court, and the Supreme Court agrees that only a simple majority was required. The measure currently provides that in those circumstances, the Bill must be reconsidered by the Scottish Parliament before it can be passed for Royal Assent. We have taken account of the observations of the noble and learned Lord, Lord Hope, in order to make a little more sense —if I can put it that way—of the provisions of Clause 11 on the application of the supermajority. I beg to move.

[Lord Hope of Craighead]

My Lords, I think I should thank the noble and learned Lord the Advocate-General for Scotland for his kind words. The amendments improve the intelligibility of these provisions. It is important that the system work as smoothly as possible, so I am extremely grateful.

[Lord McFall of Alcluith]

My Lords, we agree with the Government on this very sensible measure. We appreciate the minor and technical amendments and fully agree with them. We thank the Minister.

[Lord Keen of Elie]

I am obliged to noble and learned Lords for their contributions.

Amendment 15 agreed.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

16: Clause 3, page 3, leave out line 35 and insert—
“( ) In the Interpretation provision, omit the definitions of “Digital service” and “Ordinary local election” and insert—”

Immigration Bill

Lord Keen of Elie Excerpts

Monday 1st February 2016 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, before the Minister replies to the noble Lords, Lord Kennedy and Lord Paddick, may I add a word in support of their points, particularly the point about proportionality that has just been made by the noble Lord, Lord Kennedy? Why does the Minister feel we need to add to those powers that immigration officers already have, as set out in chapter 16 of the Home Office Enforcement Instructions and Guidance?

Would he also comment on the extensive powers that immigration officers already have to search without warrant in connection with a criminal offence? What is envisaged here, as I try to understand it, is to give those same officers powers to search premises without a warrant, in circumstances where they do not have any reasonable suspicion that a criminal offence has been committed. Is that the case? Is there no restriction in this clause authorising an immigration officer to act only where it is not practicable to obtain a warrant? If that is so, this is quite an extension of powers, and one that is disproportionate in the way that the noble Lord, Lord Kennedy, has described.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I am obliged to the noble Lords, Lord Paddick, Lord Kennedy and Lord Alton, for their observations on these provisions. I shall begin with Amendment 184, which seeks to insert the phrase “is required to” in place of “should”, and explain why that would not be appropriate. As I observed, Amendment 184 seeks to ensure that an immigration officer’s power to examine a person for the purpose of making a decision to curtail their leave is limited to whether the person’s leave is required to be curtailed. The use of the words “should be”, which appear in Clause 20, reflects the wording already included in paragraph (2) of Schedule 2 to the Immigration Act 1971, which refers to examination on the basis of whether a person should be given leave or refused it. It naturally follows that the power to examine for the possible purpose of making a curtailment decision is on the same basis. Indeed, it would be rather strange if one test differed from the other in that context.

The effect of the amendment would be to fetter the Secretary of State’s discretion under the Immigration Act 1971 to decide when a person’s leave should be curtailed. The basis on which leave may be curtailed is set out in the Immigration Rules. Some of these are mandatory probations and some are discretionary. An example of a discretionary ground on which leave may be curtailed is when the Secretary of State considers it undesirable to permit a person to remain in the United Kingdom in light of his or her conduct, character or associations. Immigration officers therefore need to be able to question a person to ascertain whether curtailment is or is not appropriate. I can reassure the noble Lord that immigration officers may question only people who have already entered the United Kingdom for immigration enforcement purposes where they already have some information, or reasonable grounds for suspecting, that the person is in breach of immigration law. Therefore it would be wholly inappropriate, having regard among other things to the terms of the Immigration Rules, to put in this amendment in the form of a requirement rather than a discretion.

Clause 21 gives immigration officers a power to search premises for documents that might help in determining whether a civil penalty should be imposed on an employer or landlord. This power may be exercised only where immigration officers are already lawfully on premises. I will come back to this point in the context of the observations from the noble Lord, Lord Alton; it is not a question of dispensing with the requirement for a warrant, but I will address that point directly. A primary role for immigration enforcement activity is the disruption of illegal working and illegal renting. We believe it is fitting for immigration officers to have specific administrative search powers where they are exercising powers for a non-criminal purpose.

Immigration officers already have powers to search for evidence of the offence of employing illegal workers and will do so for the new offence of leasing premises to a disqualified person. However, as I am sure noble Lords will agree, it is often more appropriate to impose a civil penalty than to pursue a criminal prosecution. Immigration officers provide employers and landlords with an opportunity, during a visit to the relevant premises, to supply evidence that they have undertaken right-to-work checks before taking any enforcement action. If an employer or landlord is able to do this, no further action is taken against them.

While I understand that some noble Lords may have concerns regarding the reasonableness of having a power of search in the context of a civil penalty, where immigration officers have established through existing powers that a migrant does not have a right to work or a right to rent, and the employer or landlord is unable to demonstrate that they have made the appropriate checks, it does not seem unreasonable for the immigration officer to be able to search for evidence such as payslips or timesheets, tenancy agreements and letting paperwork. This is especially important in cases where a migrant claims simply to be a guest at residential premises or “assisting”, for example, in a restaurant.

While search powers in the civil penalty context are relatively rare, they should not be disregarded purely on this basis when there is a compelling case for introducing them. By equipping immigration officers with these new powers, the Home Office should be enabled to make better-informed decisions as to whether liability for a civil penalty has arisen and help to ensure that only non-compliant landlords and businesses are faced with civil penalties. To put the matter shortly, it would be rather strange if, having made provision for civil penalty, we should say to immigration officers, “You have the power to search if you intend to pursue a criminal prosecution but you have no power to search if you intend to take the lesser step of imposing only a civil penalty”. For that reason, Clause 21 is considered material to these provisions.

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[Lord Alton of Liverpool]

My Lords, I am grateful to the Minister for what he said about the training of immigration officers. But before he goes on to the next point in his argument, does he recall that in 2014, in the case of R v Ntege and Others, his honour Judge Madge stayed the prosecution because of both bad faith and serious misconduct? He held:

“I am satisfied that officers at the heart of this prosecution have deliberately concealed important evidence and lied on oath”.

In addition, in 2010, in Abdillaahi Muuse v Secretary of State for the Home Department, the Court of Appeal concluded that the conduct of what was then the Immigration and Nationality Directorate in the unlawful imprisonment of Mr Muuse,

“was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous”.

How can the Minister, in extending the powers that already exist for immigration officers, ensure that there is not a repetition of those sorts of cases?

[Lord Keen of Elie]

Clearly, I will not comment on the detail of individual cases in this context. Those findings were made, and clearly they indicate conduct that was wholly unacceptable, and—let us add—quite exceptional, with two cases cited in many years. It is regrettable that those events occurred, but let us remember that they are isolated events. As regards the general powers of immigration officers, they will be provided with training and guidance on the use of their powers and are given enforcement instructions in guidance.

[Lord Kennedy of Southwark]

My Lords, on that very point, I know that the Minister cannot do it today, but would he be prepared to write to noble Lords, or to the noble Lord, Lord Paddick, and explain what that training and guidance will be? He said it would be very extensive, and I am sure it will be, but I wonder how long it will take, what the cost will be and how practical it will be.

[Lord Keen of Elie]

I should add that the guidance on immigration officers’ use of powers is set out in the enforcement instructions and guidance, which are published on the UK Government website. But I would be content to write to the noble Lord to set out an outline of the proposed training for those immigration officers who are going to have the limited power conferred by Clause 22 with regard to the preservation of evidence that they believe has been the product of some criminal act.

There was one further point made by the noble Lord, Lord Paddick, about the false positive, as he termed it, and the administrative burden. I respectfully suggest that that burden will be no greater than the burden imposed upon police officers in circumstances where immigration officers believe that they have encountered the product of a criminal act and then telephone or radio the police and invite them to attend a premises. So there is a question of balance here, but it is not, on the face of it, going to be a disproportionate burden when compared to the present circumstances in which the matter is, in any event, brought to the attention of the police.

[Lord Paddick]

My Lords, I thank the noble Lords, Lord Alton of Liverpool and Lord Kennedy of Southwark, for speaking to this group. I also thank the Minister for his explanation of Amendment 184. I will read with care what he said on that particular amendment.

As far as Clause 21 is concerned, which is the power to search premises simply to establish whether a civil penalty should be imposed, I am a little confused, because I am not sure how an immigration officer can establish whether a breach of the law is something that should be responded to by way of criminal prosecution or by civil penalty until the search of the premises and the necessary paperwork has been found. If the immigration officer has reasonable cause to suspect that a criminal offence has been committed, there is an existing power to carry out that search. Now it may be that in the course of that search, using the power under the suspicion of a criminal offence having been committed, the paperwork is found to show that it is not a serious breach and therefore that a civil penalty would be more appropriate. But the search can still be conducted without a specific power to search on the basis of a civil penalty.

The Minister said that having the power to search on the basis of a civil liability would ensure that only non-compliant employers and landlords would have action taken against them. But surely a compliant employer will offer up the necessary documentation and a search without the consent of the employer or landlord will not be required. Therefore, again, I do not see why that power is necessary.

As far as Clause 22 is concerned, if it were simply a case of restraining people who were on the premises from interfering with something that was believed to be evidence of a criminal offence while the police are called and come to investigate the matter, I might be a little more sympathetic. But the Minister kept talking about seizing and retaining property, and said that immigration officers would not be in the evidence chain. Clearly, if they seize and retain the property, they are in the evidence chain: the police cannot give evidence of the fact that the property was in the premises if the immigration officer just appears at the police station with the property and tells the police officer, “I found this”.

As I said earlier, it is very important to question people in situ about, for example, a bag of drugs. It may be necessary for there to be forensic examination of those drugs for, say, fingerprints or perhaps even DNA, or for the property to be photographed in situ. That is something that I would have confidence that only the police would think about, rather than an immigration officer who is there to enforce the law on immigration rather than to deal with these other, arguably more serious, offences.

As far as the administration burden is concerned, with property being taken and given to the police versus the time that the police would have to spend going to collect the property from the premises, with the greatest respect, I do not think that the Minister realises the administrative burden that goes with police seizing property and the problems associated with it. I say that it would be a disproportionate burden on the police were immigration officers able to seize such property. But, at this stage, I beg leave to withdraw my amendment.

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[The Earl of Listowel (CB)]

My Lords, having visited Yarl’s Wood several times in the past, I have noted the deep anxiety of those resident there. Anything like this will be particularly disturbing to them, so that should be kept in mind.

We must always draw attention to concerns about the treatment of these vulnerable individuals, but we must also commend the Government when they take steps to protect such individuals and treat them with respect. I take this opportunity to pay tribute once again to the last coalition Government, which took children and families out of these settings. Many of us were very concerned at the large numbers of families who were detained at Yarl’s Wood, often for many months on end. I remember speaking to a 16 year-old girl who was there with her mother and her six or seven year-old sister for nine months. It is very much to the coalition Government’s credit that they decided to change the system.

[Lord Keen of Elie]

I am obliged to noble Lords. I shall begin by addressing the points raised by the noble Lord, Lord Alton, and the noble Earl, Lord Listowel, in the context of the report from Stephen Shaw. Of course the background to this was the detailed Report of the Inquiry into the Use of Immigration Detention in the United Kingdom by the All-Party Parliamentary Group on Refugees and the All-Party Parliamentary Group on Migration, of which the noble Baroness, Lady Hamwee, was a member. That led to the appointment of Stephen Shaw, and as the noble Lord, Lord Alton, has observed, he recently reported on this matter. My noble friend Lord Bates, upon receipt of that report, made a Statement to the House in which he pointed out that the Government welcomed the important contribution that Stephen Shaw had made to the debate about effective detention and accepted the broad thrust of his recommendations. That will be the subject of a further response in due course, and certainly I hope before the Report stage. I hope that the noble Lord, Lord Alton, will allow me to defer any detailed comments on the points he raised until that further response is made. But what I add is that we welcome observations that he may have to make following his visit to Yarl’s Wood on Wednesday. His comments will be received in the appropriate spirit because this is a demanding area and one in which the Government are willing to seek to respond to the broad thrust of the recommendations that Stephen Shaw has made.

I turn to Amendment 185, moved by the noble Lord, Lord Paddick, but before doing so I will make this observation. He spoke about strip searches. I take issue with that term. There are full searches but they are not strip searches. It may be that he wishes to come back on that, but I take issue with the term “strip searches”; they are full searches.

[Lord Paddick]

Can the Minister tell us the difference between a full search and a strip search?

[Lord Keen of Elie]

It is set down in detail, but in general it means that someone is not stripped. It means that articles of clothing are removed and returned in turn, but without them being stripped.

I return to Amendment 185, which would limit the Secretary of State’s ability to direct officers to search for nationality documents to those in respect of whom she has made a deportation order under Section 5(1) of the Immigration Act 1971, preventing its use for those whom she intends to deport. It may help if I explain that the Secretary of State, in accordance with regulations made under Section 105 of the Nationality, Immigration and Asylum Act 2002, issues a written notice to those foreign national offenders who are liable to deportation under Section 5(1) of the Immigration Act 1971 stating that she intends to seek a deportation order against them. Such persons may be detained by virtue of paragraph 2(2) of Schedule 3 to the Immigration Act 1971. Therefore, the reference to “intends to” is simply a way to ensure that such persons are within the ambit of the new powers while in detention. Being able to direct a search for nationality documents once a person has received such a notice but before a deportation order is made reduces the risk of documents being destroyed when the person knows that deportation is a realistic prospect. That is the purpose of the provision in its present form and why we resist the proposed amendment.

Amendments 186 to 188, 190, 192 and 193 seek to limit the Secretary of State’s disposal options on nationality documents which are not used to remove a person, by ensuring that they must be returned to the person who was previously in possession of them or who appears to be entitled to them. On that last point the noble Lord, Lord Paddick, is of course right to say that the country which issues a passport is the proprietor of that passport, while the person to whom it is issued is the user. It is therefore that country which is entitled to claim ownership, as it were, of the passport document. That touches upon the point he mentioned about the potential risk of returning a document to an issuing authority creating a danger for a person in particular circumstances. That is a point I will take away and consider because it had not immediately occurred to me in this context.

The reason why the Secretary of State should be given the wider power indicated in the present clauses is because there may be circumstances in which she would wish to remove from circulation forged or counterfeit documents. The idea that, having identified a passport as forged or counterfeit, she should return it to the person who had been using it seems a little unusual. It is in these circumstances that the wider power is sought.

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[Baroness Hamwee (LD)]

My Lords, I think that some Members of your Lordships’ House are still struggling to work out how a search which is complete in bits sequentially is different from a strip search. However, what I want to say at this point is that I am not the only Member of your Lordships’ House, or indeed the only Member present today, to take part in the inquiry by the all-party groups to which the Minister referred. The noble Baroness, Lady Lister, was also an energetic member of the group.

[Lord Keen of Elie]

The noble Baroness is of course quite right and I apologise to the noble Baroness, Lady Lister, for omitting her name from the reference. Of course it is acknowledged that the report was the precursor to Stephen Shaw’s helpful and incisive report on this matter. I am obliged for that.

[Lord Paddick]

My Lords, I am very grateful to the Minister for his explanation. As noble Lords will be aware, many amendments at Committee stage are probing amendments, so the explanations given by the Minister on this occasion have been very helpful.

On Amendment 185, I mentioned that the Secretary of State has to serve a notice on people—a formal notice of the intention to make a deportation order. The Minister pointed to that as being the meaning in the Bill. I asked the question: if that is the case why is that wording not on the face of the Bill rather than the rather vague wording that is currently there? Maybe the Minister can reflect on that between now and the next stage.

As far as the definition of nationality documents is concerned, I accept that under the Dublin agreement, as long as we are a member of the European Union, it is important to establish the first place of safety in terms of where the person should apply for asylum. I am reassured that Secretaries of State must at all times act reasonably. On that basis, I beg leave to withdraw the amendment.

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[Lord Paddick]

My Lords, I move the amendment in my name and that of my noble friend Lady Hamwee. We also have Amendment 201 in this group.

Amendment 194 relates to Schedule 5 and amendments to the search warrant provisions in the Immigration Act 1971. We have already debated all premises warrants under Amendments 171, 172 and 173 in relation to the seizure of vehicles driven by someone illegally in this country. These provisions relate to search warrants issued to search for personnel records and nationality documents, and again allow any premises owned or occupied by the person specified in the warrant without having to specify the premises. The only thing I would say to that is that the explanation given under those previous amendments appeared to be simply to bring the Immigration Act into line with the Police and Criminal Evidence Act. Will the Minister say whether there are other specific reasons why all premises warrants would be valuable in the circumstances?

Amendment 201 is to probe the extension from one month to three of the time during which a search warrant issued under the Immigration Act 1971 can be executed. I accept that these provisions bring Immigration Act search warrants into line with those issued, predominantly to the police, under the Police and Criminal Evidence Act 1984, as amended by Section 15 of the Serious Organised Crime and Police Act 2005. However, is this necessary or safe in immigration cases?

The Immigration Law Practitioners’ Association points to evidence in the March 2014 report of the Independent Chief Inspector of Borders and Immigration in relation to the use of the power to enter business premises without a warrant by immigration officers. It found that in 59% of the cases examined, the required justification had not been made out. I appreciate that this provision is to extend powers given by warrant but the chief inspector’s report indicates the need for increased, not less scrutiny by the courts of the powers used by immigration officers. I beg to move.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord. As he indicated, Amendment 194 would remove the ability for immigration officers to seek an all premises warrant where they have a power to enter and search premises for material which is likely to be relevant evidence of an immigration offence under the 1971 Act. As the noble Lord anticipated, one purpose of this is to bring the provisions on such warrants into line with those for police warrants under PACE.

In addition, Amendment 201 is intended to do the same thing, but I should perhaps explain that when the immigration warrants were originally provided for, as running for one month, that was in parallel with the time that a police warrant would run under PACE. Subsequently, the warrant under the Police and Criminal Evidence Act was extended to a three-month period, so they fell out of sequence. The difficulty is that, from time to time, there are joint immigration officer and police operations which involve warrants being granted, and it is not convenient that the immigration warrant should be a period of one month while the police warrant is for a period of three months. The purpose of Amendment 201 in particular is simply to bring the time limit back into line with that which applies for police warrants.

Coming back to Amendment 194 and the use of all premises warrants, it is considered appropriate that an all premises warrant should be available to immigration officers, not only because that is consistent with the form of warrant available to police officers pursuing their own powers but because there are many circumstances in which an all premises warrant will be required for effective recovery of material pertaining to either illegal working or potential offences in respect of landlords and illegal renting. For example, where you have someone who has a number of restaurants employing persons who may be suspected of being illegal immigrants, you may have a warrant in respect of particular premises and then discover that all the records are actually kept elsewhere—in an office, a lock-up, or something of that kind. Therefore, it is appropriate that all the premises that are subject to the control of a particular employer should be available under the warrant, otherwise we would have a very long, drawn-out, step-by-step process of knocking down one domino, going from one warrant to the next one, and so on. It is in these circumstances that it is considered appropriate that an all premises warrant should be allowed in the case of immigration officers. I hope that that addresses the concerns or reservations expressed by reference to Amendments 194 and 201. In a sense, they bring immigration warrants into line with police warrants, but they were in line with police warrants before the amendment to the Police and Criminal Evidence Act. In addition, there are substantive reasons why it is practical and effective for immigration officers to have an all premises warrant facility available to them.

Government Amendments 195 to 200 and 202 to 209 may look rather complex, but have at their core a very simple proposition; that is, in Scotland it is not lawfully possible to secure an all premises warrant and a multiple entry warrant. Therefore, it is necessary to ensure that immigration officers operating in Scotland do so within the bounds of the Scottish criminal justice system.

[Lord Kennedy of Southwark]

I see the need for the amendments, but will the noble and learned Lord explain further how we have had to come to this stage in the Bill—I assume that it was drafted in the Home Office, checked and rechecked, and then went all through the Commons—and now we find that we have to table an amendment because these powers are not available in Scotland? I am surprised that we had to come to this stage to realise that point.

[Lord Keen of Elie]

It may be that the Scots only recently had a look at it. I am not in a position to elaborate, but I hope that the noble Lord will accept that as a potential explanation.

[Lord Kennedy of Southwark]

That is very helpful, thank you.

[Lord Keen of Elie]

I shall go on to deal with government Amendment 214B, which is not concerned with warrants per se, but to clarify that the person who can undertake the role of custody review officer under Section 24A of the Criminal Law (Consolidation) (Scotland) Act 1995 includes a police inspector and is not limited to a person of equivalent rank. In Scotland, immigration officers currently have a power to detain pending arrest, and charge for immigration and nationality offences under Section 24 of the 1995 Act, which is similar to arresting a person pending charge in England, Wales and Northern Ireland. Under Section 24A of that Act a “custody review officer” may authorise an extension of the period for which a person can be held in detention under Section 24. This role has always been undertaken by a police inspector and the amendment is simply to ensure that there is no possible ambiguity in the provision that provides for this operational practice. Amendments 214C and 214D are minor and technical and simply remove redundant wording from the Bill.

I hope that these explanations will satisfy noble Lords and that they will feel able not to press their amendments, and I shall move the government amendments.

[Lord Paddick]

My Lords, I am grateful to the Minister for the explanations that he has given. I still have concerns relating to the Chief Inspector of Borders and Immigration’s report on immigration officers’ use of powers to enter premises without a warrant. In 59% of cases examined the required justification had not been made out. Giving immigration officers similar powers to those of police officers to enter any premises owned or occupied by the person named in the warrant and to do it over an extended period where it is not a joint operation with the police still causes me some concern.

I am not sure whether there is similar malpractice, so far as police officers are concerned, in the execution of PACE warrants, but the Chief Inspector of Borders and Immigration’s report seems to suggest that the exercise of powers by immigration officers is not perhaps as thorough as it is by police officers. My concerns remain, but at this stage I beg leave to withdraw the amendment.

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Moved by

[Lord Keen of Elie]

195: Schedule 5, page 94, line 14, after “(b)” insert “subject to subsection (2A),”

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Moved by

[Lord Keen of Elie]

202: Schedule 5, page 97, line 36, leave out “28FB(1C)” and insert “28FB(3A)”

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[Lord Kennedy of Southwark]

My Lords, this group of amendments concerns the supply of information to the Secretary of State and the establishment of a commission for standards for immigration officers. I was somewhat surprised that without Amendment 212 or something similar—it may need refining—it would be left to the Secretary of State to dispose of nationality documents as they think appropriate, without any further clarifications. It would be useful if the noble and learned Lord, Lord Keen, would confirm that there is no question that these documents will not be returned to the person when they are no longer needed by the Secretary of State or their officials. I understand that we would not want to return the documents to someone who had no right to have them, but if they have been obtained lawfully they should go back to them.

Amendment 215 requires the Secretary of State to establish a commission to make recommendations for an independent oversight board to set standards for immigration officers. Given the sort of powers that immigration officers exercise as public officials, it is right that we should have in place a proper process to look at complaints about their conduct and standards. It would be helpful if the noble and learned Lord were to set out what happens at present. Is this safeguard in place with regard to certain things but not to others, as the noble Lord, Lord Paddick, indicated? Does the noble and learned Lord think that the present system is adequate in all respects?

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Paddick and Lord Kennedy of Southwark, for their observations on these provisions.

Amendments 210 and 211 are essentially the same as those previously discussed in relation to Amendment 191 in seeking to ensure that the Secretary of State may direct a person to supply a relevant nationality document only—and may retain that document only—if she acts reasonably in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom, and that the document may facilitate that removal.

Amendment 213 is the same as Amendment 189, put forward to Clause 25, in seeking to limit the definition of “nationality document”. The noble Lord, Lord Paddick, observed that I had not addressed the distinction between the term “showing” and the term “might establish”. It respectfully appears to me that it is the distinction between that which is explicit on the face of a document and that which may be inferred from its terms. The terms of a document may not on their face show a particular position but an analysis of the terms of that document would lead to an implication about the source of the document, the person using it or the background of that person. So I suggest that it is the distinction between a document being explicit on its face, and giving rise to what might be termed a circumstantial evidential route to a determination with regard to a person’s nationality or route of travel.

Amendment 212 differs slightly from those previous amendments to Clauses 25 and 26 on the Secretary of State’s power to dispose of documents which she no longer wishes to retain in that it requires the document to be returned to the person who supplied it. However, to answer the question raised by the noble Lord, Lord Kennedy, we again face a difficulty when the Secretary of State is provided with documents which are clearly forged or counterfeit. The desire is to ensure that these should not remain in circulation and therefore be returned to someone who would put them back into circulation or use them again. I hope that that satisfies the noble Lord. It should be acknowledged that some of the bodies supplying documents will not be in a position to establish whether they are forged or fraudulently obtained—but, generally speaking, Immigration Enforcement personnel are able to determine that from the analysis of documents.

As we have discussed, Clause 29 contains powers that enable the Secretary of State to require public authorities, subject to certain conditions, to supply nationality documents to the Home Office for immigration purposes. Schedule 6 lists those public authorities to which the new duty applies. Government Amendment 214A is quite straightforward in terms of its effect in that it adds education bodies to that list: these are schools and further and higher education providers across the United Kingdom. This power will be exercisable only where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and that the document may facilitate the removal.

I wish to be absolutely clear that this is not a power to require education bodies or, indeed, any of those listed, to collect data or information on behalf of the Secretary of State, or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a nationality document is already lawfully in the possession of the relevant body—that is to say, that they hold the document for the purposes of their own functions.

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[Lord Kennedy of Southwark]

The noble and learned Lord has gone through the various bodies to which we can complain. However, there are a lot of bodies to which one can complain about all sorts of different things. Perhaps his officials should reflect that there is a case for bringing all these things together because having all these bodies may not be the best way to run things. As regards the nationality documents, I entirely accept the point about fraudulent documents but if a document is genuine I assume that it would be returned to the relevant person.

[Lord Keen of Elie]

On the last point, the Secretary of State will act reasonably, and is lawfully obliged to act reasonably, so there cannot be any real difficulty about that. On the noble Lord’s first point, our complaints procedure may be so comprehensive that it is difficult for him to get his arms round it. However, I would be content to write to outline that procedure in more detail if he felt that would assist.

[Lord Paddick]

My Lords, I am very grateful to the Minister for the explanations that he has given. As he said, many of them were similar to points that we had already debated. I am very grateful for his explanation about the broadening of the definition, which he did not cover on the previous amendments. I shall read with interest, and very carefully, what he has said on that issue.

On Amendment 215, I echo what the noble Lord has just said about the many and different avenues of complaint. How can somebody who has a genuine grievance against the Immigration Service possibly know which body to turn to among all that complexity? The Minister did not address the concerns that I expressed on behalf of many communities about their lack of trust and confidence in the Independent Police Complaints Commission, and the concern that those who are likely to come into contact with the Immigration Service are likely to be more vulnerable and less aware of their rights than those who do make complaints to the Independent Police Complaints Commission.

The Minister made reference to the Independent Chief Inspector of Borders and Immigration. I have to confess to not knowing exactly what the chief inspector’s remit is, but if it is similar to that of Her Majesty’s Chief Inspector of Constabulary, it is purely a monitoring function—an investigation and review function—rather than a complaint-examining function. Indeed, if any complaint were made to the Chief Inspector of Borders and Immigration about the conduct of the immigration office, I would expect him to refer it to—

[Lord Keen of Elie]

I should have added that Independent Police Complaints Commission’s remit was extended to investigating complaints and serious conduct matters relating to the exercise of immigration enforcement powers by Section 41 of the Police and Justice Act 2006 and the UK Border Agency (Complaints and Misconduct) Regulations 2010. I had omitted to mention that.

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The arrangements in the Bill would allow the exercise of functions by persons other than the Secretary of State or First-tier Tribunal, and my Amendment 221D would insert “on behalf of” those. I assume that is what was meant, or has outsourcing crept even further? Certainly, if it has, whoever exercises the functions should be subject to the supervision and control of the Secretary of State or tribunal in this context. I beg to move.

[Lord Keen of Elie]

My Lords, I hope it may be for the convenience of the Committee if I observe that, with regard to Amendments 220, 222 and 223, which raise the question of bail conditions and the Secretary of State’s proposed power to address conditions already set by the tribunal, I recognise the important constitutional issues that the noble Baroness, Lady Hamwee, has raised. Given the proposed amendments from all sides of the Committee and the concerns expressed by the Constitution Committee and the Joint Committee on Human Rights with regard to this matter, the Government will think again about this. We anticipate bringing forward before Report a suitable amendment to Schedule 7 with respect to bail conditions. I hope that this assists the Committee.

[Baroness Lister of Burtersett]

Very briefly, I support Amendment 215A because I absolutely agree that this is not a trivial matter. I am not an expert on these issues but a social scientist who knows the importance of language. Some years ago, it was quite common among the media and politicians to talk about bogus asylum seekers. That did immense harm, so I absolutely agree that language which has connotations of criminality when applied to asylum seekers is totally inappropriate and could be very harmful.

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[Lord Kennedy of Southwark]

My Lords, the intervention by the noble and learned Lord, Lord Keen, is helpful in respect of this group of amendments. It starts with Amendments 215A and 216A in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. These amendments seem practical and proportionate. I concur with the points made by the noble Baroness, Lady Hamwee: a person must be released if there is no power to detain and they cannot lawfully be detained, and it does not seem right to use the term “bail”. I particularly agree with the point made by the noble Baroness, Lady Hamwee, and other noble Lords that language must be accurate. People seeking asylum should be seen as victims and not treated as criminals. That is an important point.

Amendment 217, which was tabled by my noble friend Lord Rosser, the noble Baroness, Lady Hamwee, the noble Lord, Lord Paddick and me seeks to add an additional clause that sets out a process whereby somebody detained has a clear procedure to go before the First-tier Tribunal within eight days, then after 36 days and then every 28 days for it to determine whether they should be released on bail. This is an important role for the judiciary, as the noble Baroness, Lady Hamwee, said. The amendment makes provision for detention not to be indefinite and for a proper review process. Depriving somebody of their liberty is a serious matter. It is right that the reasons for detention should be vigorously tested and that the tribunal should be satisfied that there is no other reasonable course but to detain the person. We support this amendment.

Amendment 219 seeks to remove from the Bill the power for the Secretary of State to detain an individual granted bail by the tribunal without just cause. Amendments 220, 222 and 223 would remove the provisions that would allow the Secretary of State to override the decisions of the tribunal with regard to electronic monitoring or residence conditions on immigration bail. Amendment 224 would require the Secretary of State to make provide accommodation facilities for a person released on bail. This is an important provision under the heading:

“Powers of Secretary of State to enable person to meet bail conditions”.

Ensuring that a person has a roof over their head should be a primary concern. Amendments 221A and 221B in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, seek to remove the words,

“causing a danger to public health”,

and,

“in that person’s interests or”.

I particularly look forward to the response of the noble and learned Lord, Lord Keen, on this. The noble Baroness, Lady Hamwee, made an excellent point.

Amendment 221C clarifies that the arrangements to communicate must be reasonable. It is an important requirement. These are difficult matters and the emphasis on the word “reasonable” is very welcome. Amendment 221D makes clear that the functions are exercised on behalf of the Secretary of State. The remaining amendments are in the name of the noble Lord, Lord Bates, and I looking forward to an explanation of them.

[Lord Keen of Elie]

I am obliged to the noble Baroness and to noble Lords for their observations on this part of the Bill and on bail. I notice that we have all referred to “bail” throughout the debate. Going back through various parliamentary reports over many years, the references are consistently to “bail”. It is a term that we understand in this context. That is important because, as the noble Baroness observed, the use of language is significant in this context. It is as well to bear that in mind.

I shall look first at Amendments 215A and 216A on the use of the term “immigration bail”. Let us be clear: no one is seeking to criminalise immigration or to treat immigrants as criminals. It so happens that the term “immigration bail” has come into common parlance in this context. Clause 32 and Schedule 7 are intended to simplify the current powers on bail and temporary release contained in various Immigration Acts, effectively reducing six different forms or statuses to one. The description “immigration bail” was chosen because it is a well-understood concept. The statutory underpinning for criminal bail and immigration bail are in entirely different pieces of legislation. The naming of immigration bail is not about criminalising people. It is about being clear about an individual’s situation. The term “temporary admission” could have been chosen, but it is a less accurate way of describing the status as it would not capture, for example, the circumstances of individuals encountered in the UK without leave or those who had leave but are subject to a deportation order. In these circumstances, we resist the suggestion that “immigration bail”, which is widely understood by those who engage in this debate, should be replaced by “temporary admission”, which is less exact and less accurate as a means of describing the relevant status.

Amendment 217 is on automatic bail hearings. It would require a bail hearing in the tribunal after eight days of detention, then after 36 days and every 28 days thereafter. The Government take matters of liberty seriously and have made clear in the recent Written Ministerial Statement by my right honourable friend the Minister for Immigration that changes to policy and the operational approach to detention should lead to a reduction in the number of those detained and in the duration of detention before removal, especially for the most vulnerable. However, the Government do not consider that introducing mandatory and scheduled bail hearings will aid these reforms. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention or for a writ of habeas corpus to the High Court, again at any time.

The current system is flexible by design, both in the interests of justice and in allowing the detainee ready access to the tribunal. Introducing automatic bail hearings at set periods in all cases would be a significant resource burden on the tribunal at the expense of the taxpayer and would take valuable judicial time that could be spent on other matters, potentially prolonging the time spent in detention and denying other appellants timely access to justice. Mandatory bail hearings at set intervals were placed on a statutory footing, as a noble Lord observed, the last time the Opposition formed a Government, being legislated for in Part III of the Immigration and Asylum Act 1999. However, they were never brought into force and were repealed in the Nationality, Immigration and Asylum Act 2002. What was the reason for the repeal? The plans were unworkable in practice and would have been a significant resource burden. That remains the position today, so we resist the amendment.

Amendment 221A would remove the requirement to consider the public health implications of bailing an individual. It is not about incarceration. In order to detain pending removal, there must be a realistic prospect of removal in a reasonable timeframe. Paragraph 3 of Schedule 7 sets out a number of factors that the bailing authority must have regard to when considering whether bail is appropriate and the conditions of bail that should be imposed. Naturally, risk to the public and community is a paramount consideration, whether that is the likelihood of the person committing an offence, the likelihood of the person absconding or the likelihood of the person’s presence in the UK being a danger to public health. This would, for example, be a consideration if there were a pandemic and an individual were infected and detained pending removal. Clearly it would not be possible to detain under immigration powers if the sole consideration was protecting public health and there was no underlying immigration justification for the exercise of the detention power. It is a justifiable power in the context of protecting public health.

Amendment 221B would remove the requirement to consider whether it is in a person’s best interests to be detained before being released on bail. I understand the reason why this amendment has been laid, as when could it ever be in anyone’s best interests to be detained? First, let me be clear on a point of principle. It is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. This is long standing and will not change. It is important to put that on the record and I am sure that the whole Committee will agree that this is right.

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[Lord Alton of Liverpool]

My Lords, I am grateful to the Minister for giving that clarification. It would be a convenience and a help to the House and to those who have made representations about this if further clarity could be given. If the power is to be used only in circumstances relating to terrorism, that seems a reasonable and justifiable provision.

[Lord Keen of Elie]

I am most obliged to the noble Lord and I undertake to write on that point.

The government amendments that arise here are essentially consequential amendments. Amendments 224E to 224K are consequential amendments to legislation to ensure that the provisions in Schedule 7 work as they should, by bringing existing legislation into line with Schedule 7, removing references to provisions which have been or are being repealed by Schedule 7 and, where necessary, inserting references to the relevant provisions in Schedule 7. Amendments 229ZA and 230ZA are consequential amendments to Schedule 8 to the Bill to reflect the amendments and repeals made in Schedule 7.

I am conscious that your Lordships had in mind not only the question of bail but the question of detention. However, as that is going to be addressed in a further group of amendments, I will come to that when we address that further group. I hope your Lordships will support the amendments standing in the name of my noble friend Lord Bates, but I ask that noble Lords withdraw their amendment—I say noble Lords, but I address that to the noble Baroness, Lady Hamwee.

[Baroness Hamwee]

My Lords, I think we are all Lords, whether Lords or Baronesses. I am obviously pleased to hear that the Government are considering the issues around the relationship between the Executive and the judiciary raised in the three amendments, although I am not entirely surprised, as I felt that the arguments—they were not mine—were irresistible. I was also interested to hear the response on the restriction of studies. It will be very helpful to see the detail of that.

I said when I moved my amendment that I would use the term “bail” in the debate because that is the term used in the Bill, although “temporary admission” is in fact used in a government amendment later. When we are bringing six statuses into one, it seems the perfect time to change the terminology. It does not necessarily have to be temporary admission—I heard what the noble and learned Lord said—but any ideas will be gratefully received on this. It is clearly something that other noble Lords feel as strongly about as I do.

I will just pick up two other points. On safeguarding for a very short time, I would be much happier if I saw that short time limit reflected in the legislation. After all, we are talking about detention here, and it is particularly ironic if it is applied to people who are on their way to care and support, which are the categories referred to. As regards public health, I suspect that if one holds a visa and comes in through a recognised route, but is found at Heathrow or wherever to be suffering from a communicable disease, one’s destination is hospital not detention.

We will wait to see the amendments on the central issue of the Executive’s power in this regard—or otherwise—and I beg leave to withdraw my Amendment 215A.

Immigration Bill

Lord Keen of Elie Excerpts

Monday 1st February 2016 Lords Chamber

[Lord Green of Deddington]

Not when I use the term, and I do not think that it applies to those people. It applies to those whose cases have been rejected, and rejected on appeal, and they do not return home when they could do so.

[The Advocate-General for Scotland (Lord Keen of Elie)]

I wonder whether I might, as it were, intervene at this point. I was obliged for the contributions from all corners of the House about what is a difficult and demanding issue. Having regard to the observations of the noble Lord, Lord Stunell, I notice that the immigration system with which he is struggling is a product, at least to a material degree, of the Immigration Act 2014, which is in turn the product of a coalition Government, in which I believe he was a Minister. That said, clearly there is room for improvement. On that we can agree, and that is why the Bill is before the House.

[Lord Stunell]

I thank the Minister for giving way, and of course he is absolutely right. I am very proud of the fact that we secured some mitigation of the existing scheme in what was achieved on child detention, which I am sure he welcomes.

[Lord Keen of Elie]

One of the points that the noble Lord referred to, and which was referred to also by the noble Lord, Lord Alton, was the question of set time limits, and the limits that apply in the context of the EU returns directive. It is important to have a full understanding of the EU returns directive. It sets a limit on immigration detention of six months and is extendable to 18 months. Some EU countries have shorter limits—France, for example—but Germany allows for the full 18 months’ extension under the directive. So one has to have regard to the full terms of the EU directive.

The United Kingdom has not signed up to the EU returns directive; we prefer to maintain control of our own borders. There are other issues to be considered as well. The very legal system within each of these European countries is distinct, so for example, in some there is no concept of judicial review of executive action, as we understand it, and therefore no scope for review of executive action in the context of immigration control and the application of immigration policy. So one has to be a little careful when seeking to rely on comparative law and comparative data.

We are, of course, working towards the voluntary return of illegal migrants to this country, as well as implementing various schemes to deal with those who refuse to return. I notice that during the last two years there have been more than 50,000 voluntary returns by migrants to this country. Again, that is simply to put the matter in context.

The noble Lord, Lord Ramsbotham, raised issues about the Bill itself and whether, given the amendments that have been made, it should not at this stage simply be withdrawn for the Government to consider many of the changes that they might have in mind, or, indeed, have regard to the amendments that have already taken place. Again, at a general level, I note that the Bill deals with a whole series of issues: labour market reform, housing, driving and driving licences, illegal working, the appeals process, immigration and bail. Only one or two aspects of that are immediately impacted by the issue that we are addressing in the context of detention.

The noble Lord also alluded to the number of amendments—but again, to put that in context, amendments took place following the consultation on labour market enforcement. When one examines them, one sees that a great number of the amendments address only a few discrete issues. For example, a whole series of amendments were required because of the nature of the local rules that apply to taxis and taxi licensing. From Portsmouth to John O’Groats, there seem to be varying rules regarding that matter. In addition, as the noble Lord, Lord Kennedy, noted, there had to be extensive amendments with regard to warrants under the judicial system in Scotland. So one has to get this into context and have a sense of proportion about what the Bill is doing.

Reference was made to Stephen Shaw’s report, which we welcomed, considered and continue to consider. Stephen Shaw did not make any recommendations about legislation. Much of what he says, so far as it is to be implemented, will be implemented by guidance, not by primary legislation. Again, it is important to get these points into context so that we understand what we are dealing with.

I will come back to some of the individual points raised, but first I will deal with the individual amendments, beginning with Amendment 216. This would require the Secretary of State to commission an independent report into the use of immigration detention, which would need to consider: how effective current use of detention is; how effective current safeguards are; how to reduce the numbers in detention; and the practical steps needed to introduce a maximum time limit for detention of 28 days.

While I understand the intentions behind the proposed new clause, in our submission it is not necessary. Stephen Shaw has undertaken an independent review of our approach to the detention of vulnerable individuals. The Government have published his report and our initial response to it, through a Written Ministerial Statement published on 14 January. It is not the length of that response that is material; it is the quality of it that truly matters. In it, we have set out our ambition to see a reduction in the number of those detained, and the duration of detention before removal, which in turn would improve the welfare of those detained.

The Government have broadly accepted the recommendations that Stephen Shaw made, and in particular will introduce a strengthened presumption that adults at risk should not be detained unless there is clear evidence of immigration risk factors. I take this opportunity, which I am sure that the whole Committee will echo, to thank Stephen Shaw for his thoughtful and in-depth consideration of these very material issues and for his associated recommendations.

If Amendment 216 is agreed it will simply duplicate the work that Stephen Shaw has undertaken and delay the Government’s programme of implementation while the outcome of the new review is considered. Here we are addressing this Government’s manifesto commitments.

Amendment 216ZA would place a statutory requirement on the Secretary of State to review our policy on detention and bail conditions, and consult as part of that exercise. Again, Stephen Shaw has already done much of this. He has undertaken an in-depth review of our policy and made recommendations for improvements. We will take forward this work and, again, it will be implemented not by primary legislation but by consideration of guidance.

Amendment 216ZB requires a review of the rules and regulations about how individuals are treated while in immigration detention. I wish to make it clear to the Committee that the Secretary of State takes her duty of care to these individuals very seriously indeed. Healthcare is provided by the National Health Service and there are meaningful activities provided. Individuals also have access to legal advice—a point that was raised earlier—and to translation services.

Immigration removal centres are not prisons and do not have as strict a regime as prisons. Individuals are allowed to associate and move freely throughout the centres. However, the Government have accepted the broad thrust of Stephen Shaw’s report and will be taking further action to review our policies and procedures to ensure that detainee welfare is at the heart of immigration removal centres’ regimes.

Amendment 216ZC would mean that an individual who claims to be vulnerable could not be detained on the authority of the Secretary of State; a request would need to be made to the tribunal to authorise detention. It would also have the effect of preventing the detention of pregnant women in any circumstances. I understand the intention of this amendment, and the whole House will agree that vulnerable individuals should not normally be detained. That is our current published policy. In response to Stephen Shaw we will be further strengthening our approach, introducing a new “adult at risk” concept into decision-making on immigration detention. This means adopting a wider definition than at present of what constitutes an adult at risk, with a clear presumption that people who are at risk, including pregnant women, should not be detained.

[Baroness Lister of Burtersett]

I may be pre-empting what the noble and learned Lord is about to say. However, Stephen Shaw is very clear that presumptive exclusion should be replaced with an absolute exclusion. The noble and learned Lord talks about strengthening presumption. That is qualitatively different from absolute exclusion. Do the Government accept the recommendation of absolute exclusion and, if not, why not?

[Lord Keen of Elie]

The present published guidance means that we do not, and should not, detain pregnant women except in exceptional circumstances. There are, in fact, very few pregnant women in the estate. The Government are reflecting on how to implement Stephen Shaw’s policy in regard to adults at risk, and will address that in due course. However, as I say, it will be a matter of guidance.

[Baroness Lister of Burtersett]

I am sorry to press this. I accept that it is a matter of guidance. We put it in an amendment to have a debate on it. However, it seems to me that there is an attempt to slide out of answering the question of whether presumptive exclusion in the guidance will be replaced by absolute exclusion, because that is very clearly what Stephen Shaw recommended. I am not getting a clear answer on that.

[Lord Keen of Elie]

The clearest answer I can give is that it is a matter for consideration at present by Ministers. They will consider it because they have already said that. They noted the recommendations in Stephen Shaw’s report. They have not yet determined in a black and white way that they will implement all 64 recommendations and no one would expect them to have done so in this timescale, but they will address them.

[Lord Alton of Liverpool]

My Lords, the noble and learned Lord, Lord Keen, has probably exhausted that line of argument for the moment. However, he was also asked during the debate not whether there are few or many but how many pregnant women are in detention centres at present, what their length of stay has been and whether any babies have been born there. If he cannot give those figures this evening, rather than simply saying “very few”, which was the phrase he used a few minutes ago, perhaps he will agree to write to noble Lords and let us know exactly what the numbers are.

[Lord Keen of Elie]

I am perfectly happy to write to noble Lords to give the figures for the number of pregnant women at present in detention and perhaps over a period of six months to cover both before and after Stephen Shaw’s report, so that there are some meaningful figures they can work from. I cannot give exact figures. That may not surprise your Lordships. I am advised that there are very few pregnant women in the estate. However, more precise figures will be given.

The adults at risk policy will take a more holistic and dynamic approach to the assessment of vulnerability, based on the best available evidence. That is what Stephen Shaw has identified as the most ambitious approach to ensuring that adults at risk are safeguarded. However, the approach in the proposed new clause would not be workable in practice. It does not take into account the realities of how individuals are discovered. For example, how would we handle cases at the border who can be returned on the next flight? Following this amendment, an individual could not be lawfully detained without an order of the tribunal. That would be an administrative challenge to obtain and would require significant extra resources. The same would be true of an individual encountered jumping off the back of a lorry. And what would happen if someone was already detained and raised these issues? Would they be unlawfully detained until an order of the tribunal was given? It is simply not workable in practice.

--- Later in debate ---

[Baroness Lister of Burtersett]

I am sorry to intervene again, but “indefinite” does not mean that people are there for ever. It means that people do not know how long they will be there, and that is what has had the terrible psychological impact on people. From that perspective it is “indefinite”, because there is no clear time limit that gives people certainty and hope.

[Lord Keen of Elie]

With respect, it is not possible to say to somebody that they will be in detention for X period in this context. For example, if they choose not to co-operate by producing any documents, or they do not tell the truth about their point of origin or their journey—where they arrived in Europe, for example—it may be very difficult to investigate their circumstances, and they may yet during that period pose a risk, whether to the public or otherwise. Therefore, detention is not necessarily, and cannot be, dictated by reference to a fixed period. But of course, it is open to them to go to a tribunal and apply for bail—and that is the whole point. So it is not, in that sense, indefinite: they have the opportunity to canvass before the tribunal the issue of whether or not they should remain in detention.

At Second Reading, we heard a number of noble Lords speak on detention. As has been said, there was a contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He rightly identified that:

“There are two basically different circumstances in which people are detained under the legislation: first, on initial application for asylum and, secondly, when, much further down the line, it is sought to remove people whose rights of whatever sort have expired and it is proposed that they finally be deported”.—[Official Report, 22/12/15; col. 2473.]

The detained fast track generally related to the first category that the noble and learned Lord, Lord Brown, identified. Many noble Lords will be aware that the detained fast track has been suspended since July following my right honourable friend the Immigration Minister’s decision that he could not be certain of the level of risk of unfairness to certain vulnerable applicants who may enter the process. I can confirm to the noble Lord, Lord Rosser, that the detained fast track will remain suspended until my right honourable friend is sure that the right structures are in place to minimise any risk of unfairness and that effective safeguards can be put in place. A Statement will be made when that point is reached.

[Lord Roberts of Llandudno]

Can the Minister tell me in what circumstances that was suspended? Was it not because of a High Court action, which found that it was illegal?

[Lord Keen of Elie]

There was, among other things, a determination as to the legality of the process. I accept that—but that is why it was suspended and why it remains suspended at the present time.

Those who are detained for any length in the removal centre estate will normally be cases that fall into the second category mentioned by the noble and learned Lord, Lord Brown: those who have had their application to remain in the United Kingdom refused, whose rights have expired and who it is proposed should finally be removed. I ask the Committee to reflect on the fact that if all individuals complied with a notice that they should leave the United Kingdom, there would be little need for immigration detention, and certainly very limited need for detention beyond a very short period. However, some individuals choose not to comply with the law and do not leave the United Kingdom when they should. That is the position we are in.

Amendment 218A would require a bail hearing in every case of detention within 28 days. As I have explained previously, mandatory bail hearings by set deadlines are incredibly resource-intensive for the tribunal and have been rejected previously as being unworkable in practice. Amendment 218B would impose a requirement to release on immigration bail after 28 days of detention, unless an individual had been convicted of an offence under the Modern Slavery Act.

I can understand the noble Baroness’s reasoning for the amendment. The offences listed in Schedule 4 are very high-harm offences. But what justification could there be for detaining beyond 28 days anyone other than these high-harm criminals? Matters are not that simple. We seek to remove national security threats under deportation powers—individuals who do not have a conviction but where there is clear intelligence that they pose a risk to the public. This power would prevent detention of these individuals beyond 28 days. It would lead to the release, for example, of Abu Qatada, despite the clear threat that he and others like him pose.

The noble and learned Lord, Lord Brown, went on to say:

“Many participants in this debate have urged and will urge, benevolently, for fixed limits—sometimes as little as 28 days—to immigration detention. I say to those noble Lords: do not underestimate the ingenuity and persistence of many of those who seek to defeat immigration controls. Time and again, down the years, the system has been cleverly played, often by those who are least deserving of our sympathies. In the present edition of one of the standard textbooks on immigration law, the chapter on detention and bail extends to 96 dense pages and endless footnotes. A case on this topic in the Supreme Court in 2011 … stretched to 115 pages of judgments. This is a difficult area of the law and I respectfully suggest that we should not rush to impose some limit”.—[Official Report, 22/12/15; col. 2474.]

Again, the noble and learned Lord, Lord Brown, summarised the position well. I ask this House to heed his wise words and not to legislate in haste. It is for these reasons that I ask that the amendment be withdrawn.

Before I sit down, I notice that I have not responded fully to the points made by the noble Lord, Lord Ramsbotham. In particular, he raised the question of consultation on the short-term holding facility rules. It is regrettable that we have not yet consulted on those rules. However it has to be remembered that they operate not in a vacuum but under the statutory framework contained in Part 8 of the Immigration and Asylum Act 1999 and its associated schedules. They are also covered by the Home Office’s detention services orders. Now that the Shaw report has been published, we will take forward consultation on the draft rules.

[Baroness Hamwee]

My Lords, before the noble Lord, Lord Rosser, responds, the picture that has been painted of the situation, including those who are subject to detention, does not seem to accord with the observations which so many of us have heard, including those of Stephen Shaw. The noble Lord, Lord Rosser, quoted the last sentence of Mr Shaw’s conclusions, which is in paragraph 11.8. He said:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

It seems unlikely to me that it has been increasing because the number of people who have been convicted of offences and are due for deportation, but for some reason or another are not being deported, would account for that increase in the way in which I heard the explanation.

I took seriously the comments of the noble and learned Lord, Lord Brown of Eaton under Heywood. I ask again whether there is not a way in which those of us who are concerned properly to get to a situation where there is not the lack of hope to which noble Lords have referred cannot together find, with some imagination, a way of dealing with this that will give a structure to detention immigration but allow for the very rare exceptions that it might be proper to make.

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The Government are clearly unmoved by what the Shaw review said. They are unmoved by the all-party inquiry into immigration attention. They are unmoved by the decision in the House of Commons, and they are unmoved by the view of the Chief Inspector of Prisons. If the Minister wishes to intervene, I am very happy to give way. There has been no indication that the Government intend to move on anything. I asked which of Stephen Shaw’s recommendations were being accepted and which were being rejected. I have not been told of even one that has been accepted. I have been told that the Government continue to undertake a review of his recommendations. One of his recommendations—recommendation 62—has already been referred to.

[Lord Keen of Elie]

I believe that I did observe that we accept the broad thrust of his recommendations. At this stage, we have not determined which of the 64 individual recommendations we will implement. I cannot see that as surprising in the time available.

[Lord Rosser]

That comes back to the point that the noble Lord, Lord Ramsbotham, made about this legislation in relation to an inquiry that has just taken place. In my opening contribution, I commented that a statement that we are accepting the broad thrust of the recommendations is as long as a piece of string. Perhaps I can test the Minister on that. Recommendation 62 states:

“I recommend the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.

Is that one that the Government intend to accept? I am only asking about one recommendation out of 64. The Minister shakes his head. That makes my point.

[Lord Keen of Elie]

With great respect, one could ask about one out of 64,000. It is not a question of which one but of addressing all of them in due course and in the context not necessarily of primary legislation but of the need for further guidance. The noble Lord has underlined the potential need for further guidance in this area.

[Baroness Hamwee]

I suspect that the noble Lord may be coming towards a halt, if not to the end of the issue. It occurs to me that I do not think that any of us asked about the Home Office’s internal review on this subject, which we heard about in previous debates.

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[Lord Rosser]

The reason for asking about recommendation 62 was that the Minister sought to tell us there was not a problem because people could apply for bail. But recommendation 62 is based on Mr Shaw looking at the situation with regard to bail. It is in the light of having looked at it that he said:

“I recommend that the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.

So I would have thought that the Minister, having referred to the very issue that prompted recommendation 62, might have a view on what the Government’s response was to it. But clearly there is silence from the Government on that particular score.

I do not know whether the Minister intends to respond to the question about the Home Office internal review. As I understand it, the noble Lord, Lord Ramsbotham, has said that he raised the question and has not had a response to it. Is there an internal Home Office review going on? I am obviously not going to get an answer, so it looks like a secret review.

[Lord Keen of Elie]

There could well be a secret review, but in so far as there is an ongoing review, we will write to the noble Lord about its progress. However, I have mentioned the matter which the noble Lord, Lord Ramsbotham, raised, about the short-term holding facility rules and the review of those rules. I indicated that we were going to consult on those draft rules in the light of the Shaw report.

[Lord Rosser]

Is the purpose of the Home Office internal review to decide whether to accept any or all of the Shaw report recommendations, or is it on another issue?

[Lord Keen of Elie]

There is an internal review, and I have already indicated that we will set out the position in writing.

[Lord Rosser]

That is a very interesting reply; the Minister is not prepared to tell me what the purpose of the review is. That is a fair comment, because he could have stood up and told me. I asked him the question and he has not answered it. I will just leave it in this context. We detain people who are not criminals for an unknown period of time as an administrative or executive decision and not as a judicial one at any meaningful stage. The message that has come over from the debate so far, in the absence of anything very specific from the Government, is that the Government find that situation entirely satisfactory. A number of noble Lords in the Committee this evening do not find that situation satisfactory. None the less, I beg leave to withdraw my amendment.

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[Baroness Hamwee]

My Lords, this is a shorter group. Amendments 224A, 224B, 224C and 224D are in my name and that of my noble friend Lord Paddick.

Paragraph 7 of Schedule 7 gives powers to the Secretary of State to enable a person to meet bail conditions. Paragraph 7(1) provides for when a person is subject to a condition requiring him to reside at a particular address and he would not be able to support himself at that address without assistance. Sub-paragraph (2) allows the Secretary of State to,

“provide, or arrange for … facilities for the accommodation … at that address”.

My first amendment would again change this from permissive to mandatory. If the Secretary of State requires someone to live at a particular address, it seems to us that, in the circumstances spelled out of the person not being able to otherwise support himself, the Secretary of State should provide the facilities. Sub-paragraph (3) limits the power I just described,

“to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the exercise of the power”.

We would take out the thinking element of that to make the limitation more objective.

Sub-paragraph (4) gives the power to make a payment for travelling expenses which the person incurs,

“for the purpose of complying with a bail condition”.

Similarly, it applies,

“to the extent that the Secretary of State thinks that there are exceptional circumstances”,

and we would make the same two amendments.

I rather wish now that we had also sought to delete the reference to “exceptional circumstances”, given that by definition the person who is the subject of this cannot support himself. I failed to do that, but I do not think it invalidates the amendments. I beg to move.

[Lord Keen of Elie]

I am obliged to the noble Baroness. As she observed, Amendments 224A and 224B would create a duty to pay, in exceptional circumstances, for accommodation to anyone released on bail if the individual were required to live at a bail address not of their choosing or if the person could not otherwise support themselves. In turn, Amendments 224C and 224D would require the Secretary of State to pay an individual for travel costs incurred while complying with conditions of immigration bail where there were exceptional circumstances, again limiting discretion.

We would submit that these amendments are unnecessary. As was noted by the noble Baroness, paragraph 7 of Schedule 7 provides a power for the Secretary of State to ensure a person can meet bail conditions by paying for the costs of their accommodation and travel expenses in appropriate circumstances. It is important to note that the Secretary of State is given a discretion on the matter of exceptional circumstances. Individuals released on bail will be able to be supported by the Home Office under the Bill if their individual circumstances warrant it, generally because they do not have the funds to obtain adequate accommodation, cannot obtain it from friends or relatives, and are unable to avoid the risk of destitution while they are here except by leaving the United Kingdom.

However, if a person is an asylum seeker, they will be able to apply for support under Section 95 of the Immigration and Asylum Act 1999, and the Bill makes no changes to the support available to asylum seekers who would otherwise be destitute. They will continue to be provided with accommodation and a cash allowance to cover their other essential living needs.

In our submission, it is right that the Secretary of State, who is accountable to Parliament, has the final discretion on whether to provide accommodation to, or to pay the travel expenses of, those released on bail. It is not a matter that she should be obliged to respond to. In those circumstances, I ask that these amendments be withdrawn.

[Baroness Hamwee]

My Lords, I thank the Minister for that reply. It seems that whether the amendments are necessary or not depends on whether you are the Secretary of State or the person subject to the bail condition. However, I heard what the Minister said. I do not think it would be appropriate to pursue the matter now. I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

224E: Schedule 7, page 109, line 4, at end insert—
“In section 11(1) (construction of references to entry)—
(a) omit “, or temporarily admitted or released while liable to detention,”, (b) omit “or by Part III of the Immigration and Asylum Act 1999”, and(c) for “or by section 68 of the Nationality, Immigration and Asylum Act 2002” substitute “or on immigration bail within the meaning of Schedule 7 to the Immigration Act 2016”.”

--- Later in debate ---

These are very much probing amendments to ask how the power should be used and why it is necessary. Do the Government have recent experience in which the Secretary of State has been unable to cancel leave when, on a common-sense view, she should have been able to do so? I beg to move.

[Lord Keen of Elie]

I am obliged to the noble Baroness. As she observes, Amendment 225 seeks to change the wording of Clause 33 so that leave extended by Section 3C of the Immigration Act 1971 may be cancelled only when the failure to comply with a condition of their leave relates to a “material” condition. That would leave us in the situation whereby the original grant is not subject to that condition, but the extension was. The Immigration Rules allow for leave to be curtailed when a person has failed to comply with any condition attached to their grant of leave. However, the Home Office has published guidance on when failure to comply with conditions of leave may lead to curtailment of leave. For example, if a student is granted leave with the condition that they work no more than 10 hours each week, the guidance states that curtailment is appropriate if the student is working full time. However, when the breach of leave is very minor—for example where a student worked for 10.5 hours for one week only and was compliant with their conditions of leave in all other respects, the guidance states that it would normally be disproportionate to curtail their leave. In considering whether to cancel leave extended by Section 3C, caseworkers will apply the same principles as they do when considering whether to curtail leave under the Immigration Rules. So there is here consistency between the original leave and the extension allowed for, which is why the wording is as it is. The same considerations of proportionality will apply as in terms of the guidance that I have just indicated.

The effect of Amendment 226 is to change the power to cancel leave extended by Section 3C so that a person has to “deliberately” use or have used deception in seeking leave to remain. The wording of Clause 33 is the same as that used in the offence of deception in Section 24A of the 1971 Immigration Act and the wording used in the Immigration Rules to curtail immigration leave. The courts have confirmed that “deception” means something that is knowingly done and so the addition of the word deliberate is, with respect, unnecessary.

Both Amendment 225 and Amendment 226 would mean that the power to cancel leave extended by Section 3C would differ in its wording from equivalent powers to curtail leave under the Immigration Rules. This creates the risk of perceived differences between the circumstances in which Section 3C extended leave and leave granted under the Immigration Rules can be cancelled. I fear that if either of these amendments were to pass, much time and cost would be spent in the courts considering whether these differences in wording have the effect of creating different powers in practice.

I understand the concerns about how the power to cancel leave extended by Section 3C is to be exercised. I reassure noble Lords that the power to cancel leave extended by Section 3C is discretionary. For example, it would not be right to cancel leave extended by Section 3C where a person was unaware of the deception. In deciding whether to cancel leave extended by Section 3C, the same principles will apply as when considering the curtailment of immigration leave. For the benefit of the noble Baroness, the relevant decision on deception is the case of AA (Nigeria) v Secretary of State for the Home Department in 2010. In these circumstances, I invite her to withdraw her amendment.

[Baroness Hamwee]

My Lords, I did not disbelieve the noble and learned Lord when he said that there was case law on this. I understand that the term “deliberately” is encompassed within deception. As I said, my concern was to probe how the power would be used and why it would be necessary. From what we have heard, it seems to have been something of a tidying-up exercise, rather than because there has been a bad experience—the Minister is nodding his head.

I suspect that I am not alone in, as always, feeling just a little uneasy when we are told that the answer is “in guidance” so it will all be okay. Having made that observation, though, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Baroness. Just to be clear, if I were to take the black letter of her amendment, I, like many of your Lordships, would be a little confused. Indeed, one part of the amendment appeared to remove the affirmative procedure of Parliament in approving the addition or removal of names from the safe list. I have no doubt that that was never her intention. I will therefore respond in the spirit in which the amendment was addressed.

There are various lists, of course; one has to be careful about this, because there are lists of countries for the purposes of Section 94, but in addition there are potential lists of safe third-party countries—that is, where someone has left one country but arrived in a safe country within Europe and then moved on to the United Kingdom. I will therefore deal with this at a fairly high level of generality, because the various lists have various different aspects to them. Indeed, the Part 3 list does not have any countries in it at the moment.

The Government have already made an announcement that they will not opt into the common EU list—just to be clear about that. However, in so far as we maintain lists of safe countries, we are conscious of the issues that can arise with respect to them. Indeed, it has been the subject of litigation in case law in this country, which cited, for example, Jamaica and the issue of whether it was a safe country of return. The Home Office keeps these lists, whether they are under the Immigration Act or under Part 3, under constant review, and consider all aspects of the list when deciding whether or not to maintain a country on that list or to remove it. I apologise for addressing the matter at that level of generality, but I hope that the noble Baroness will forgive me for responding to her amendment in that form.

[Lord Alton of Liverpool]

I would be grateful if I could ask him something about these lists—whether the Government accept that the guidance the Home Office gives can sometimes have extraordinary consequences. He will know that his noble friend Lord Bates was good enough to meet me to discuss the situation of detainees held in detention centres in the Far East—people who had escaped from Pakistan. These included people from the Ahmadiyya community, Shia Muslims, Hindus, Christians—they came from many backgrounds but all had faced what seemed to be absolute examples of persecution. However, the Home Office guidance simply said that these were people who risked discrimination. As the noble Lord, Lord Bates, knows, that became like holy writ as far as the UNHCR—which I met during the same visit, in September last year—was concerned. I had the Home Office guidance quoted back at me as though this was a trump card they were able to use to show that these people were perfectly safe and no consequences would befall them. However, in reality, because of that guidance many of those cases will not even be considered until 2020, and those people will go on living beneath the radar between now and then, living illegally in the country where they are because their asylum claims have not been settled and they are not allowed to work. Therefore the implications of Home Office lists and guidance can often be more far-reaching than maybe we ever imagine.

[Lord Keen of Elie]

I notice what the noble Lord says and I do not take issue with it. I add only that, where an individual does identify particular circumstances pertaining to themselves, whether it be religion or whatever, those circumstances are taken into consideration. However, I appreciate the point that the noble Lord has made.

[Baroness Hamwee]

My Lords, I thank the Minister for his response. Jamaica is indeed an example, and maybe the Democratic Republic of Congo as well. In defence of my rubbish drafting, one of my then quite new colleagues told other colleagues that the most reassuring thing she had encountered in giving her confidence to speak in the Chamber was when I moved the wrong amendment and the sky did not fall. I may use this example in encouraging other new colleagues. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I beg to move Amendment 226C standing in my name and that of my noble friend Lord Wallace of Saltaire. This amendment deals with the requirement for certain immigrants to register with the police and calls for a review of the arrangements.

The matter was brought to our attention by Universities UK because of the experience of foreign students being required to register with the police within seven days. Failure to register in that time limit may lead to the curtailment of leave or may affect future applications. We heard of students having to queue through the night or round the block to register. The question that was asked of us, and which I now ask of the Minister, is: what is done with the information garnered through that registration process? That is why subsection (2) in the proposed new clause refers to an assessment of the resources that are required, how useful the registration is, the uses to which the information is put, the need for the requirement, and any recommended changes, including efficiencies. I have not used the term “cost-benefit analysis”, but that is essentially what it amounts to, together with a concern for the individuals.

I also wonder about the cost of the administration for this. There is a fee of £34: not only do you have to register but you have to pay £34 for the privilege of queuing through the night. The numbers arising at particular times make the administration really quite difficult to handle. There is also the issue of this country’s reputation internationally as a result of this procedure. I beg to move.

[Lord Keen of Elie]

Again, I am obliged to the noble Baroness for highlighting this point. The new clause would require the Secretary of State to review the requirement that non-visitor migrants of specified nationalities register with the police, and then lay before both Houses a report on that review. In our submission, such a review and report is not necessary.

The noble Baroness correctly identified that there is a police registration scheme. The provision is set out in Section 3(1)(c) of the Immigration Act 1971. The requirements to register with the police are specified in the Immigration Rules. The requirement to register with the police is normally placed on a migrant who is aged 16 or over, from a non-EU country and who is given leave for longer than six months. The requirement is to register within seven days of obtaining qualifying leave to enter or remain. There are a number of exceptions where the requirement will not usually apply, including ministers of religion, people exercising access rights to a child resident in the UK, and those granted refugee status.

The requirement to register with the police is not onerous. In the Metropolitan Police area, where there is the highest concentration of migrants required to register, there is a designated office in Borough. For all other police force areas, the individual should register at the nearest police registration office. As the noble Baroness noted, there is a registration fee, currently £34, which reflects the administration costs of the police registration certificate.

The noble Baroness mentioned an occasion when students were reported to have had to queue. In October 2012, some long queues of migrants, mainly students, were seeking to register at the London Overseas Visitors Records Office. OVRO made changes to its process following that incident, including providing pre-booked timeslots for migrants required to register, and I am advised that there has been no recurrence of those queues. Universities are also given the option of collating the relevant paperwork from their students who are required to register and delivering it to the OVRO in bulk. The police continue to work and engage with those involved to manage peak flows in registrations and to minimise any inconvenience from that. I accept that there was an occasion in 2012 when there were delays, but that has not repeated itself.

The information required for registration is all information that will be held by the individual, including personal details, a current photograph, passport details, address in the United Kingdom, their last place of residence outside the UK, and details of their employment and/or place of study. This information is then on record for the police and other law enforcement to access, as necessary, in order to maintain security.

The various requirements for those seeking to stay and live in the UK, as set out in the Immigration Rules, are periodically under review to ensure that they strike the right balance between immigration control and security in the UK. I believe that this current approach is proportionate, particularly in the current state of heightened security concerns, and it is unnecessary for there to be a statutory requirement for a formal review to be conducted and a report laid before both Houses. In light of these points, I invite the noble Baroness to withdraw the amendment.

[Lord Rosser]

How many people should have registered under this arrangement in 2014, or any other year that the Minister is aware of, and how many did register? What is the penalty for not registering and how many people have been penalised for not registering?

[Lord Keen of Elie]

I am obliged to the noble Lord for his three questions and I will write in response to provide the detail, which I do not have immediately to hand at this moment. I hope that was not a surprise to the noble Lord.

Scotland Bill

Lord Keen of Elie Excerpts

Tuesday 19th January 2016 Lords Chamber

Finally, the regulations are to be published. I think that it had been hoped by the Law Society of Scotland that we might have had an opportunity to see at least a draft regulation in respect of one of the tribunals to be transferred. I apologise if that has already been done and made available, but that I have not yet seen it. Perhaps the noble and learned Lord in his reply would indicate whether one has been put in the Library so that we can have an opportunity before Report to see what content these regulations will have. I beg to move.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords—

[Lord Davidson of Glen Clova]

I know that the noble and learned Lord is enthusiastic to get to his feet. We on this side see some force in the amendments in the name of the noble and learned Lord, Lord Wallace, but I will confine myself to only one aspect. He observed that the question of fees in employment tribunals and Employment Appeal Tribunals might arise in a different sense were these tribunals to be fully devolved. We see the current employment tribunal fee system, which has been widely criticised by legal professionals, academics and so on, as constituting a real and true barrier to justice.

If employment tribunals are fully devolved, Scottish Ministers would have the capacity to establish in the process, in conjunction doubtless with the trade unions and ACAS, the possibility of scrapping the fees that currently apply in Scotland. Perhaps the Minister might agree that that would improve access to justice in Scotland.

[Lord Keen of Elie]

I am obliged for the scrutiny that your Lordships’ House has given Clause 37, in particular to the noble and learned Lord, Lord Wallace of Tankerness, for highlighting issues with respect to tribunal practice and procedure.

Let us be clear: Clause 37 provides a mechanism for enabling the transfer of functions of reserved tribunals to the Scottish tribunal system. The clause recognises the implications not only of paragraph 63 of the Smith commission agreement, but of paragraph 64, which recommended that the law providing for the underlying reserved substantive rights and duties governing the matters heard by these tribunals would continue to be reserved. Therefore, Clause 37 provides that these functions should be transferred by means of an Order in Council. That provides a degree of flexibility that would not otherwise be available. As the noble and learned Lord, Lord Wallace, observed, it is not really practicable to contemplate the transfer in one unit, as it were, of all these functions. The Order in Council will provide for the transfer of those functions, subject to conditions, that may be necessary to ensure the continuing effect of delivery of overarching national policy, and the underlying rights and duties that arise in areas of the law that continue to be reserved.

Amendments 52F and 52G are concerned with the transfer in respect of the employment tribunals and employment appeal tribunals. It is considered appropriate that this should proceed by way of Order in Council. Indeed, a draft Order in Council has been made available for consideration regarding this matter.

Let me assure the Committee of two things. First, any conditions or restrictions included in an Order in Council must be approved by both this Parliament and the Scottish Parliament before such an Order in Council can be made. Therefore, there will be scrutiny of any conditions attaching to such a transfer in both Parliaments. That is a consequence of the amendment proposed by Clause 37(2), which means that the form of Order in Council will be subject to the approval specified as “Type A” in Schedule 5 to Part III of the 1998 Act. Secondly, the Government do not agree that the terms of transfer of all reserved tribunal functions should be completely unqualified. There are circumstances in which it will be appropriate to ensure that functions can be undertaken in a way that maintains some continuing effective delivery of reserved legal matters—that is, of overarching national policy.

In these circumstances, it is proposed that an Order in Council in respect of employment tribunals will allow for consideration by the Scottish Government of the matter of fees in respect of those tribunals. That is not to say that in every instance where there is a transfer by means of Order in Council the matter of fees will not be addressed, but in the case of employment tribunals and employment appeal tribunals, I can say to your Lordships that the matter of fees will be for the Scottish Government and will not be reserved in any respect.

Reciprocity between the tribunals is a matter that will be worked out in the context of each Order in Council, and will certainly be the subject of discussion with the Scottish Government so far as any transfer is concerned.I am not aware at present of there being any specific statutory provision for such reciprocity to take place. I am aware that, as a matter of practice, tribunal judges, who are tribunal judges within the UK tribunal system, sit in both Scotland and England. There may be distinct benefits in attempting to ensure that that continues.

--- Later in debate ---

[Lord Wallace of Tankerness]

The noble and learned Lord has not addressed Amendment 52H and what other tribunals it is anticipated may be covered in future.

[Lord Keen of Elie]

That is, as it were, a known unknown at this stage. There are no particular tribunals in mind so far as that is concerned. However, if further tribunals are created, it is contemplated that they should not transfer automatically but should be subject to the same conditionality that is thought appropriate for existing tribunals. It is at that level of generality. It is not contemplated that there is any particular tribunal that will be addressed by that provision. I hope that answers the noble and learned Lord’s question and invite him to withdraw the amendment.

[Lord Mackay of Clashfern (Con)]

On the point made by the noble and learned Lord, Lord Wallace of Tankerness, about taking cases from England, where the delays in particular situations can cause difficulties, and bringing them to Scotland, the definition of a Scottish tribunal in new sub-paragraph (11)(a) is as one,

“that does not have functions in or as regards any other country or territory, except for purposes ancillary to its functions in or as regards Scotland”.

I wonder whether there is any difficulty in relation to what I would have thought was a good idea—namely, to have the possibility of cases being referred to Scotland where that would help scheduling. However, it would be necessary for the law to be applied if a case was transferred to be the law that would be applied before it was transferred.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Mackay of Clashfern. First of all, of course, we are dealing with reserved matters. If we were dealing with immigration, for example—a matter of reserved law—there could be circumstances in which the application of Scots law led to a different outcome from the application of English law. I notice that new sub-paragraph (11) in Clause 37 talks about the meaning of a Scottish tribunal, but that, on the face of it, does not appear to determine the scope of its jurisdiction to hear cases from outside Scotland. It is more a question of what is a Scottish case in that context. That is something that can be looked at, I suggest, in the context of each Order in Council for the transfer of each tribunal. There may be room to facilitate the transfer of cases in the manner suggested. That is something that we will take away and consider.

[Lord Wallace of Tankerness]

My Lords, I very much thank the noble and learned Lord, Lord Keen, for his response and the noble and learned Lord, Lord Davidson of Glen Clova, for his comments. On the question of fees, which we both raised in relation to employment tribunals, I think we probably believe that we got a satisfactory answer from the Minister. Indeed, I am very grateful to him for the replies that he gave us. In his further elaboration in his response to the noble and learned Lord, Lord Mackay of Clashfern, he indicated that the Government would be looking at—and, I hope, achieve—a situation whereby the Orders in Council will allow for the transfer of cases between jurisdictions to alleviate backlogs. It may well be that it applies the other way, too. Then we might be faced with a situation where a Scottish case could be heard in a jurisdiction furth of Scotland. No doubt, an Order in Council would be sufficiently well crafted to deal with that situation as well. The noble and learned Lord is right: I suspect that at the moment there is no statutory provision to allow reciprocity of the judiciary because, of course, we have a Great Britain tribunal system. Where there is legislation, it relates to Northern Ireland—for example, in relation to social security. I would hope to see the kind of provision that has been made for reciprocity with Northern Ireland apply in any orders that are brought forward with regard to the transfer of tribunals to Scotland.

With regard to the term “or otherwise”, the noble and learned Lord suggested that that related to judicial expertise. I think elsewhere in his response to the noble and learned Lord, Lord Mackay of Clashfern, he accepted and acknowledged that there could be situations where Scots law was different. That is reassuring. While I think it is absolutely right that there should be a common approach—indeed, the Smith commission recognised that when you are dealing with UK statutes, it is desirable that there should be a common approach—nevertheless there will be circumstances where the respective courts take a different view. It would be unfortunate if that were closed down.

I apologise that I had not seen the draft Order in Council before coming into the Chamber. I am not sure that the Law Society of Scotland had seen it either. If the Minister would like to indicate where one might find it, that would be very helpful. If he cannot do so today, he can certainly write to us and that will be satisfactory.

[Lord Keen of Elie]

I undertake to advise the noble and learned Lord as to where a copy of the draft Order in Council can be obtained.

[Lord Wallace of Tankerness]

That would be helpful. In these circumstances, I beg leave to withdraw the amendment.

Scotland Bill

Lord Keen of Elie Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord McAvoy]

No, and I am sorry if the noble Lord took that the wrong way. However, I spend my life in Scotland, week in, week out. I listen to people there and am heavily involved in community organisations. I am not trying to devalue the noble Lord’s point of view but I can speak only from my experience. There is a suspicion there—justified or not—about Westminster trying to lay down the law. I know I tempt fate saying that in front of the noble Lord, Lord Forsyth, but there we go. We are suspected of laying down the law in a popular way, not in a legal way—once again, there are too many lawyers. We are talking about how this would be seen as being dictated to by Westminster and interference in the mandate. The Smith commission had the agreement and we are pushing that forward. We would be interested in supporting the amendment of the noble and learned Lord, Lord Hope of Craighead, and I look forward to an interesting night.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

First, I thank all noble Lords and the right reverend Prelate for their informative submissions, observations and comments, with regard to both Clause 1 and the proposed amendments to it. I begin by making a number of general observations. First, no one on the Government Benches is in any doubt about the supremacy and sovereignty of the United Kingdom Parliament. In that regard, I take issue with some of the comments of the noble Lord, Lord Purvis. Ultimately, it is for this Parliament to determine the constitutional arrangements of the United Kingdom.

The noble and learned Lord, Lord Hope, alluded to some observations he made in the case of AXA General Insurance and others in 2011. I recall those well. He may in turn recall that my client came second in that case. Reference was also made to some obiter dicta of the noble and learned Lord in the case of Jackson, to which we would not necessarily subscribe. However, they are there and are a helpful insight into the thinking of the court at that time with regard to the issue of sovereignty.

The purpose of this Bill is to implement the Smith commission agreement. To suggest that there is no mandate for that is, in my respectful submission, quite inaccurate. Each of the five political parties in Scotland went into the Smith commission and negotiated the terms of an agreement. The Government have undertaken to seek to implement that agreement. That is the purpose of this Bill.

[Lord Maxton]

On that point, all the political parties went into that Smith commission and all of them signed the report. However, the Scottish National Party immediately came out of the Smith commission, John Swinney among them having signed the report, and rejected it.

[Lord Keen of Elie]

I am aware of the conduct of the Scottish National Party in that regard and do not make any comment at this stage upon that. Perhaps it will be seen by others as extremely unfortunate that it should have lent credence to the agreement and then sought to renege from it. The point that we make is that it was signed—it is an agreement. It is in that context that this Bill is brought forward.

As I say, no one on the government Benches seeks to take issue with the proposition that this Parliament is sovereign and supreme. What we have here is a provision in the Smith commission agreement that we should recognise the permanence of the Scottish Parliament. It has been observed that it is, in a sense, already permanent—so be it—but let us remember that Clause 1 is concerned with a political statement, as much as any legal statement. That is its purpose, and it is not wholly exceptional in that regard. The noble Lord, Lord Norton, made reference to the Cabinet Office provisions on legislation at Chapter 10.9 of the Guide to Making Legislation. But when looked at, it expresses a generality—and, where there are generalities, there may of course be exceptions. This is one of those exceptions. I note that my noble friend Lord Forsyth agrees with me on that point.

My noble friend in turn suggested that there was little if any precedent for this form of legislation. I remind him that the Act of Union with Scotland of 1706, under the Gregorian calendar, referred to a Parliament of Great Britain for all time. In saying that, it made a political statement as much as a legislative provision—and that, again, is what we are doing here. We are recognising the political reality reflected in the Smith commission agreement.

Amendments 1 and 3 seek to modify Clause 1 by removing reference to permanence of the Scottish Parliament and the UK Government’s commitment to the permanence of that Parliament. We would not consider that appropriate. It appears to us that, in light of the Smith commission agreement, the Government should be prepared to make that political declaration of permanence. It does not take away from the supremacy or sovereignty of this United Kingdom Parliament. That remains.

[Lord Cormack]

Can my noble and learned friend give any other example of an extra-parliamentary body—the Smith commission in this case—binding Parliament, saying that Parliament will do this or that? Can he give any example of any other outside commission or body making such a declaration and binding Parliament?

[Lord Keen of Elie]

The proposition is not well founded, with respect. The Smith commission is not binding this Parliament in any sense. Whatever the wording of the Smith commission agreement itself, it does not and could not bind this Parliament; it will be for the Parliament of the United Kingdom to decide whether it passes this Bill into law. So I do not accept the underlying proposition that was relied on by my noble friend Lord Cormack in that context.

On the terms of subsection (2) of new Section 63A, a point was raised about the words,

“with due regard to the other provisions of this Act”.

In my submission, those are helpful, because the other provisions of this Act include the cross-references to Section 28 and, in particular, Section 28(7) of the Scotland Act 1998. There again, you have underlined the sovereignty of the United Kingdom Parliament and the right of this Parliament to legislate on all matters, including devolved matters, in respect of Scotland.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I am slightly behind my noble and learned friend’s speech, but I wanted to check the facts. He has made great play of the importance of including the word “permanence” as a result of the recommendations of the Smith commission. Will he explain why the Bill as originally presented to the House of Commons made no mention of permanence and why Part 1 was headed “Constitutional Arrangements” and “The Scottish Parliament and the Scottish Government”?

[Lord Keen of Elie]

In the course of the Bill’s consideration, steps have been taken to strengthen the political statement contained in Clause 1. Indeed, the noble Lord’s proposed Amendment 2 picks up this very point. He noticed that in the other place the words “recognised as” were removed from Clause 1 for the same purpose. Perhaps I anticipate the further contribution that the noble Lord may wish to make to this debate.

[Lord Forsyth of Drumlean]

Forgive me, but as in the best parliamentary answers, my noble and learned friend is telling me something I already know. My question was: if the Government thought that they were meeting the obligations of the Smith commission by presenting the Bill as it was originally presented, that they met the terms of the Smith commission and that that is the overriding purpose and the agreement, why was it necessary to add these words which create such difficulty, as is clear from the speeches made in the House? My noble and learned friend has not really answered the point.

[Lord Keen of Elie]

With respect, I rather thought that I had answered the point made by the noble Lord, but let me reiterate it. The word “permanence” appears in the Smith commission agreement. After further consideration, it was felt that in order to strengthen the political statement contained in Clause 1 that word should feature in the clause itself.

I return to Amendments 6 and 7 which seek to alter the basis upon which any decision would be made with regard to the provisions of Clause 1. As was observed, it is not anticipated that there will at any point in the future be a referendum upon that issue, but nevertheless as this matter proceeded in another place it was again considered that this would strengthen the political statement that is being made here. Let us be clear: the use of a referendum in this context is consistent with precedent. In 1997, the people of Scotland supported the creation of a Scottish Parliament on the basis of a referendum. In 2014, in the independence referendum they reaffirmed their wish to have two Parliaments and two Governments for the purposes of reserved and devolved administration in Scotland. Therefore, it is appropriate that any question about the abolition of the Scottish Parliament and the Scottish Government, which is not envisaged, should be based on the expression of the will of the people of Scotland in a referendum. Let me be clear: that is a theoretical point. There has never been any question that the Scottish Parliament and the Scottish Government are anything other than permanent parts of the United Kingdom’s constitutional arrangements. That remains the case.

It is unusual, but not wholly exceptional, for a clause of a Bill such as this to contain a political statement, an affirmation of the status quo, a declarator that it will not change, and that is the fundamental purpose of Clause 1.

[Lord Purvis of Tweed]

I am grateful to the Minister because I feel that he may well be making my point for me on the subject of new Section 63A(3). If the Government’s position, which I support, is that there can be change only if the people of Scotland make it in a referendum, does that not adjust the absolute sovereignty of this place, which can make an unfettered decision?

[Lord Keen of Elie]

Clearly it is not, because, notwithstanding the outcome of any such referendum, this place might decide not to legislate in accordance with the outcome of the referendum. One cannot use these arguments to undermine the ultimate sovereignty and supremacy of Parliament.

[Lord Hope of Craighead]

I shall take up the point that the Minister made about Clause 1 as a whole—I think he was referring to the whole clause as it now stands, with all three new subsections—that it was simply a political statement. New Section 63A(3) is not just a political statement; it lays down a condition. If that is the right reading of the new subsection, does the Minister not recognise that it might be better to address some of the possible imperfections in new Section 63A(3) as it stands? The noble and learned Lord, Lord Wallace, among others, made the point that the phrase “the people of Scotland” is a little ambiguous, and it might be better to say “a referendum held in Scotland” to tell you where the referendum is going to be.

It is quite commonplace in Committee debates for Ministers to say, “We’ll take this away and look at it and perhaps reconsider whether the wording we have in the Bill is the best that could be used”. I wonder whether the Minister would be prepared at least to look at proposed new paragraph (b) in Amendment 6; leaving aside the mention of the Scottish Parliament in its proposed new paragraph (a), it suggests a rewording of new Section 63A(3) to see if it is the best wording that could be adopted. I absolutely accept that it deals with a hypothetical situation but, if one is laying down a condition, would it not be better to use the best possible terms in doing so?

[Lord Keen of Elie]

I am obliged to the noble and learned Lord for reminding me of the observations made by the noble and learned Lord, Lord Wallace, in that context. At this time the Government consider that we have achieved the best possible wording for the purposes of new Section 63A(3) in Clause 1. I compliment the noble Lord, Lord Forsyth, on his eyesight and his ability to read my notes at such a considerable distance. However, the position of the Government remains that we are satisfied that a relatively open provision in this context with regard to the people of Scotland voting in a referendum is the appropriate way forward.

[Lord McAvoy]

The Minister said a minute ago that the result of any referendum would not be implemented if the Bill were passed and became an Act. That is the reply that was given, and in the current atmosphere it will set lots of hares running. Would he care to clarify?

[Lord Keen of Elie]

I would be pleased to clarify. We were speaking theoretically in the context of the supremacy and sovereignty of this Parliament. In the light of the referendum finding that the Scottish Parliament should be abolished, it would be necessary for legislation to be put forward. It would in theory be possible for that legislation to be defeated in this Parliament. That is all that I was saying. However, we are in the realms of extreme speculation here—or it appears to me that we are.

[Lord McCluskey]

My noble and learned friend Lord Hope has pointed out the possible difficulty in the current wording. I am very fond, as are many Scots, of the well-known tennis player called Andy Murray. Is he one of the “people of Scotland” in new Section 63A(3)?

[Lord Keen of Elie]

I am not in a position to say whether he or any other individual falls into that category, and at this stage I would not speculate on his status.

[Lord Cormack]

If my noble and learned friend cannot answer that very simple, straight question, does not that in itself indicate that he must recognise the validity of the comments of the noble and learned Lord, Lord Hope, that the Bill is capable of further improvement? In his eyes—not necessarily in ours—it was improved in the other place. Is he saying that the Government have got it absolutely right and it cannot be improved in this place?

[Lord Keen of Elie]

On the last point, just to be clear, that is what I am saying.

[Lord Wallace of Tankerness]

Maybe I can help the Minister. Perhaps he is saying that this is all just declaratory, because after all it does not matter what you put in new subsection (3). That subsection just makes the permanence referred to in new subsection (1) conditional because there are conditions there which, if fulfilled, would not make it permanent.

[Lord Keen of Elie]

If I can complete the journey around the houses that the noble and learned Lord has begun on that point: it appears that new subsection (3) simply underlines the political structure—the declaratory statement contained in the clause as a whole. The noble and learned Lord, Lord Hope, observed that of course it goes a step further in so far as it introduces conditionality to the abolition of the Scottish Parliament, which I acknowledge. As to it being,

“a decision of the people of Scotland voting in a referendum”,

that term is capable of clear and objective definition in due course. Respectfully, however, it appears that that wording is sufficiently clear for these purposes.

[Lord Purvis of Tweed]

Just to carry on a little around the House: the Minister did not make it clear at the Dispatch Box when he said that the people of Scotland would not necessarily be sovereign if this Parliament did not adhere to the result in that referendum. That is absolutely contrary to the Edinburgh agreement that the Prime Minister signed, which stated that the Government would respect that view. The sovereignty of the people should be absolute, not anything else he may say at the Dispatch Box this evening.

[Lord Keen of Elie]

I cannot agree with the interpretation of sovereignty the noble Lord, Lord Purvis, puts forward. At the end of the day, if there was a referendum—and we are talking about a theory, not political reality—it would be necessary for there to be legislation to implement the outcome of that referendum if it involved the abolition of the Scottish Parliament. No one in reality is contemplating the abolition of the Scottish Parliament. The whole purpose of Clause 1 is to make clear the permanence and the recognition of the permanence of the Scottish Parliament and the Scottish Government. The noble Lord, Lord Purvis, has to recognise that the outcome of any referendum could be implemented only by way of legislation that went through this, the sovereign Parliament of the United Kingdom. That is the only point I seek to make.

[Lord Forsyth of Drumlean]

I may be able to help my noble and learned friend to get off this line of argument. I have been reflecting on what he is saying about this clause, which is essentially that the sovereignty of the United Kingdom Parliament remains unaltered, and that what is contained in this clause is simply a declaratory political statement. Can he explain to me what a declaratory political statement is? Is a political statement one that says something but means something else? He appears to be saying that the statement is that the Scottish Parliament is permanent, and at the same time that it is not permanent because this place is sovereign. Is his definition of a political statement one which can mean whatever you want it to mean and which is basically not entirely straightforward?

[Lord Keen of Elie]

I do not accept that expression of the position. As I said at the outset, the whole purpose of Clause 1 is to make a political statement that reflects the terms of the Smith commission agreement, which determined that there should be an expression to the effect that the Scottish Parliament is permanent. We acknowledge that, and that is the political statement being made. It is a declaration of will. However, we also recognise, as I believe this House will recognise, that the United Kingdom Parliament is ultimately sovereign and supreme. I am seeking to make that point. At the end of the day, this Parliament is sovereign, and it cannot disclaim that sovereignty.

[Lord Purvis of Tweed]

In that case, can the noble and learned Lord expand on the meaning of the Government’s wording in this clause? It states that,

“the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.

Therefore, if the people of Scotland vote in a referendum and make a decision, and the Government or Parliament then disregard the view and the decision of the people of Scotland, does that mean that this clause has no purpose at all in legislation? If that is the case, what is the point of this wording being in the Bill?

[Lord Keen of Elie]

It has a purpose inasmuch as it determines that there cannot be abolition without a referendum. I am simply making the point that, as this is a sovereign and supreme Parliament, it could decline to legislate in accordance with the terms of that referendum result. However, politically that just would not happen.

[Lord Davidson of Glen Clova (Lab)]

Perhaps I may intervene. The noble and learned Lord—I was going to say “my noble and learned friend” but he is not in this context—has made it entirely clear, beyond peradventure, that this Parliament may do what it chooses because it is sovereign. When he says that this Parliament makes a declaratory statement, that is within its sovereign power. Surely that is the end of this point. If Parliament decides to make this declaration, then so be it.

[Lord Keen of Elie]

I am obliged to my noble and learned friend. It seems to me that we make no further progress on this point, notwithstanding the further observations of the noble Lord, Lord Purvis. I simply underline the sovereignty of this Parliament, and nothing in Clause 1 derogates or takes away from that. That is the bottom line. It is necessary to make progress with this Committee debate rather than to stay in still waters on one sterile point. Therefore, at this point I urge the noble Lord to withdraw his amendment.

[Lord Hope of Craighead]

Perhaps I may return to new subsection (3), which relates to a separate point from the one that the Minister has been emphasising concerning the sovereignty of Parliament and so on. If we look ahead to the day some time next year when this Bill comes back on Report, it is quite likely that there will be an amendment seeking to reword new subsection (3), perhaps along the lines that have already been discussed. I respectfully suggest to the Minister that he would carry a little more credibility if he were to depart just a fraction from the briefing that he is reading from and were prepared to say that he would look again at this. He does not have to commit himself to any rewording, but sometimes when we have these debates in Committee it softens the atmosphere a lot if one is prepared to say simply, “Well, some interesting points have been made. We’ll have another look and perhaps come back with something on Report, or perhaps not”. It would ease the atmosphere a little on this point and avoid repetitive interruptions.

[Lord Keen of Elie]

I notice what the noble and learned Lord says with regard to new subsection (3) in Clause 1.

[Lord Wallace of Tankerness]

Section 1(1) of the Northern Ireland Act 1998 also refers to the fact that it is a declaration that:

“Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section”.

Subsection (2) goes on to say:

“But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland”.

Obviously there is a context to that, but does the noble and learned Lord think that it might be helpful to add a further subsection indicating that, if a wish is expressed by a majority in a poll of the people of Scotland that the Scottish Parliament should be repealed, the Secretary of State will bring forward the necessary legislation to give effect to it?

[Lord Keen of Elie]

With respect, it does not appear to me that the two situations are immediately comparable. In those circumstances, it does not appear to me that that would add to new subsection (3) in Clause 1. I renew my submission that the noble Lord should withdraw the amendment.

[Lord Cormack]

I ask my noble and learned friend to respond more positively and helpfully to the noble and learned Lord, Lord Hope. It was a very simple point that he made. All he asked was that my noble and learned friend would reflect on what has been said during this debate and come back at a later stage, having reflected. He may be equally adamant, but he really owes it to this House to reflect on what has been said in this debate.

[Lord Keen of Elie]

With respect to my noble friend, I will reflect upon all observations that have been made in this House, but without commitment.

[Lord Norton of Louth]

Well, my Lords, this has been a quite fascinating debate. I say to the noble Lord, Lord McAvoy, that I fully accept I am a Lord and not the Lord and therefore am quite capable of getting things wrong. However, on this occasion, I am not sure that I have, given the excellent speeches that we have heard in support of these amendments. I really think it is incumbent to pursue the matter further along the lines that several noble Lords have suggested.

The noble Lord, Lord McAvoy, argues that declaratory statements are appropriate—and indeed they are but, as the guide to legislation makes clear, not necessarily in legislation. Declaratory statements are the sort of thing that should be done at the Dispatch Box. As the Minister pointed out, there have been occasions when declaratory statements have appeared in statute. But what is quite clear from the debate is the unusual context in which we are discussing this, given that it derives from extant legislation and actually complicates, rather than clarifies, what Parliament has already stipulated in legislation.

My starting point in all this is very similar to that of the noble and learned Lord, Lord Hope of Craighead—that the Smith commission heads of agreement said that the Scottish Parliament and Scottish Government will be made permanent. All parties accepted that, as he said, and the debate has proceeded on that basis. It has largely been taken as given.

It strikes me that there are two problems deriving from that. The first is that it has not been properly debated. I really think that the debate this afternoon in your Lordships’ House is the first thorough, proper debate on principle in relation to this issue. What it has demonstrated is the need for further consideration of the matter. The second problem is the extent to which the Government appear to have taken almost literally the heads of agreement—they have just taken what was said and plonked it in legislation. We will see that shortly when we discuss the Sewel convention. The Government’s line is that this is what Lord Sewel said, so that is the convention and the words go into statute. It is not put on a statutory footing; it is just plonked in statute. I think that the same has happened here. Because the heads of agreement said that it would be made permanent, the Government decided to put in place legislation to make it permanent without thinking through the implications.

Those implications have been well drawn out by the Constitution Committee, as my noble friend Lord Lang has pointed out, and I declare an interest as a member of the committee. In the context of the debate, it is well worth reminding your Lordships of the committee’s report on the Bill, especially paragraph 36:

“It is a fundamental principle of the UK constitution that Parliament is sovereign and that no Parliament may bind its successors. There is now a strong argument that Parliament is seeking to limit its own competence in a way that the courts may seek to uphold in future given that it rests on a requirement for popular consent. While we recognise that it is extremely unlikely that this will ever be tested in the courts, it is nonetheless symbolically important and we are concerned that these provisions, as currently worded, risk introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none”.

This is an extremely serious issue.

I agree with my noble friend Lord Lothian and the noble Lord, Lord Kerr of Kinlochard, who have come up with some very positive suggestions. As the noble and learned Lord, Lord Hope of Craighead, said, I see no reason why the Government could not at least go away and think about the wording of the clause and come back. As the noble and learned Lord, Lord McCluskey, has said, we must try to do better. I hope that between now and Report that is exactly what we will do. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McAvoy]

My Lords, the Government in their wisdom accepted the Labour amendment in the other place to reflect the Bill as it is. We support that. We think that it was very wise of the Government to do so. It puts the permanency of these institutions beyond any doubt. We all know the law regarding ultimate sovereignty but nevertheless it would be foolish—I am repeating myself—to reject the symbolism of having that in the Bill, so for those reasons we oppose the amendment moved by the noble Lord, Lord Forsyth.

[Lord Keen of Elie]

My Lords, I begin by making the observation that, without commitment, of course we are listening and of course we reflect upon the terms of this debate. There can be no question about that. We are here for that very purpose. I do not accept the implication that somehow we have come here with our ears closed or our minds closed, because that is not the case. I say that without commitment.

In the context of this amendment, the words “recognised as” appeared in the original drafting of the clause. I cannot accept the observation of the noble Lord, Lord Lang, that by amending a clause of this kind we end up with second best. With great respect, that is to invert the whole process of Parliament. The object of amendment—of adjustment—is to achieve a better result, and that is what the Government believe was achieved by accepting the amendment put forward by the Labour Opposition in the other place.

I note—and with great respect adopt—the observation of the noble and learned Lord, Lord Mackay of Clashfern, that if you go down the route of “recognised as”, it opens up the question of recognised by whom, in what circumstances and why? That seems wholly unnecessary in the context of this form of declaratory provision within the clause. In these circumstances I invite the noble Lord, Lord Forsyth, to withdraw his amendment.

--- Later in debate ---

[Lord McAvoy]

My Lords, not to anyone’s surprise, we oppose the amendment. It was our amendment in the House of Commons that made it clear that it should be the Scottish people who determine the permanency of their Parliament. It is not a decision for the United Kingdom as a whole.

I believe firmly in the role of this House as a revising Chamber. Therefore, there is no question of having to have a mandate, to be elected or any other method of claiming to represent people. With respect to the noble Lord, Lord Forsyth of Drumlean, it has to be taken into account that he has no mandate for this type of quite dramatic intervention. There is not much of a cry in England, Wales and Northern Ireland for inclusion in such a referendum. It would also pose the additional point made by the noble Lord, Lord Empey, that it would lack consistency and political reality to include the whole of the United Kingdom in a referendum in Northern Ireland, although I accept that there are unique circumstances in Northern Ireland.

I hope that I am not getting too repetitive, but it is my opinion, based on my experience of living and staying in Scotland—I have been in Scotland all my life—that there would be complete outrage if such an amendment were supported by this House. I ask colleagues to reject it.

[Lord Keen of Elie]

I am obliged to noble Lords. I reiterate that the purpose of the Bill is to implement the recommendations in the Smith commission agreement. I noticed that the noble Lord, Lord Smith, has already observed that the terms of the Bill do that. This provision is consistent with the spirit of the agreement. It is also with precedent, if I can put it in that context. The referendum in 1997 over the matter of devolution was a referendum of the people of Scotland. The referendum on independence in 2014 was a referendum of the Scottish people. It is considered appropriate that we should continue with that model. I note that the noble Lord, Lord Empey, pointed out that the Northern Ireland Act 1998 proceeds in a similar vein. So it is consistent and appropriate that, for the purposes of this Bill, any such referendum—the noble Lord, Lord Forsyth, himself acknowledges how extremely unlikely it is that that would even be contemplated —should be a referendum of the Scottish people. I therefore urge him to withdraw the amendment.

[Lord Forsyth of Drumlean]

I am most grateful, but before my noble and learned friend sits down, could he tell me where in the Smith commission agreement there is a proposal that there should be a referendum of this kind?

[Lord Keen of Elie]

There is no express reference in the Smith commission agreement to a referendum. As my noble friend is aware, that provision was brought into the Bill in the belief that it would strengthen the political statement contained in Clause 1 with regard to the permanence of the Scottish Parliament.

[Lord Thomas of Gresford (LD)]

My Lords, I believe that this introduces the Welsh element. There would be a profound disinterestedness in Gresford about whether the Scottish Parliament exists or not, save in so far as the Barnett formula gives them so much more money than we get. On the other hand, we would resent it hugely if the noble Lord, Lord Forsyth, had a vote in a referendum for the abolition of the Welsh Assembly, or, indeed, any successor.

--- Later in debate ---

[Lord McAvoy]

My Lords, is it not the case that the sovereignty of the UK Parliament is already protected by Section 28 of the Scotland Act 1998, which provides that the UK Parliament can always legislate for Scotland?

[Lord Keen of Elie]

My Lords, I compliment the noble Lord, Lord Forsyth, on his optimism. The position is clear: we have repeatedly stated, across this House, that the United Kingdom Parliament is a sovereign Parliament. The noble Lord decided to seek a declaratory statement of that. I submit that this is wholly unnecessary: it is beyond doubt that this Parliament is supreme and sovereign. This is restated by Section 28(7) of the Scotland Act 1998. The existing declaratory statements in Clause 1 are not in any sense misleading. They are an expression of a political reality and they are intended to declare that reality as clearly as possible, acknowledging all along the supremacy of this, the United Kingdom Parliament. The proposed amendment is wholly unnecessary and, if anything is misleading it is the necessity for it. I urge the noble Lord to withdraw it.

[Lord Cormack]

I will not prolong this brief debate unduly, but my noble and learned friend seems to be adopting a fairly intransigent line. If it is permissible to make declaratory statements to appease those who would destroy the United Kingdom, is it not permissible to insert them for those who are dedicated to its future?

--- Later in debate ---

[Lord McCluskey]

The actual wording of Section 28(7), which I do not suppose many noble Lords will have memorised, reads:

“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

It does not talk about the sovereignty of the United Kingdom Parliament at all. It talks about its continuing power to make laws for Scotland.

[Lord Keen of Elie]

I hesitate to rise again—

[Lord Forsyth of Drumlean]

I shall give way to my noble and learned friend in a moment. I wish to deal with the points that have been made and what my noble and learned friend Lord Mackay indicated the section said. I have huge respect for him. You always know that the Government are in difficulty when he has to come to their aid. He said that the relevant provision was already in the Bill. However, as the noble and learned Lord, Lord McCluskey, has pointed out, it says nothing of the sort. If this provision was already in the Scotland Act, my noble and learned friend could have said, “In order to make that clear, we will move that provision into this clause in the new Bill”. It is not necessary to duplicate it. The point is that the Scotland Act, as amended by this Bill—if it becomes an Act—will have in it sentences which, to say the least, are very provocative in terms of the continuing powers of sovereignty of this Parliament. Therefore, it is not unreasonable to think that any declaration about the sovereignty of this Parliament should be placed alongside the provision in that section of the Act.

I am most grateful to the noble and learned Lord, Lord McCluskey, because I thought that what my noble and learned friend said from the Dispatch Box was a little misleading, to say the least.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My noble friend puts it so succinctly. I wish that I had the ability to put it as concisely as he does. I absolutely agree. My noble and learned friend the Minister wanted to intervene. I will happily give way to him if he still wishes to make his point.

[Lord Keen of Elie]

I apologise to my noble friend Lord Forsyth. I must confess that I was unclear who was intervening on whom. I add to the point made by my noble and learned friend Lord Mackay of Clashfern. As I understand the point he was making—it was one that I had endeavoured to make before, but obviously had not made clearly—it is simply that Clause 1 is amending and introducing Section 28(8) of the Scotland Act 1998. It is necessary to read that in conjunction with Section 28(7) of the Scotland Act 1998, which refers to the ability of this Parliament to legislate in respect of Scotland on all matters. That is a matter to which the noble Lord, Lord McAvoy, alluded earlier as well. That is why the issue of sovereignty—the supremacy of this Parliament—is already contained in the relevant section of the Scotland Act, as it will be amended by this clause of the Bill.

[Lord Hope of Craighead]

I am grateful to the noble and learned Lord for giving way, but Clause 2 amends Section 28. We are still talking about Clause 1, which amends a different part of the Scotland Act, so there is a separation there. However, I very much endorse what the noble and learned Lord, Lord Mackay of Clashfern, said—namely, that any reader of the Scotland Act knows perfectly well that you have to look at Section 28 to understand the competence of the Parliament and the relationship between the two Parliaments. The point is simply that Clause 1 does not deal with Section 28.

[Lord Keen of Elie]

I accept that correction from the noble and learned Lord. I believe that Section 63 would be amended under Clause 1. However, essentially, the point is that if you read through the whole of Section 28, subsection (7) of that section makes it absolutely clear that this Parliament remains supreme and sovereign in the matter of legislation for Scotland, whether it be reserved or devolved.

[Lord Forsyth of Drumlean]

My Lords, I think this may be a good moment for me to withdraw my amendment. However, before doing so, I gently point out to my noble and learned friend the very wise words of my noble friend the Earl of Lothian.

--- Later in debate ---

[Lord Steel of Aikwood (LD)]

My Lords, I back up what my noble friend has said. I was in the House when we passed the Scotland Bill and I was never, ever happy with having the Sewel convention translated into law. So I am very glad to support the amendment and it is high time that this was put right.

[Lord Keen of Elie]

My Lords, first, there is the question of whether the heading is a matter for the parliamentary draftsmen rather than this House, and that is an issue, in my respectful submission. But let us turn to the substance of the—

[Lord Forsyth of Drumlean]

I did take advice on this. The amendment has been tabled so the amendment is in order, surely.

[Lord Keen of Elie]

I was going to continue by saying that, the amendment having been tabled, I would look to its substance, which is that the heading should be, “Competence of the Scottish Parliament”. I am reminded of Voltaire’s observation about the Holy Roman Empire, that it was,

“neither holy, nor Roman, nor an empire”.

Clause 2 is not about competence; nor is it about the Scottish Parliament. It restates in statutory terms the procedural convention of the United Kingdom Parliament with respect to its legislation for devolved matters. If we were to have a heading, “Competence of the Scottish Parliament” when in fact we are dealing with a matter that concerns the legislative competence of the United Kingdom Parliament, in my respectful submission, we would not only puzzle historians but confuse everyone else with regard to the content of the relevant clause.

I note what has been said about the present heading. I will reflect upon the observations made about that heading. But given that it is strictly a matter for the draftsmen, I go no further at this time. I hope that my noble friend will see fit to withdraw the amendment.

[Lord Purvis of Tweed]

I am neither a lawyer nor a historian so I wonder if the noble and learned Lord can help me with his interpretation of this. As this is an amendment Bill to the 1998 Act, once this clause takes effect, if Parliament approves it, will this title actually exist in the amended 1998 Act? If it does not, is this not all rather academic?

[Lord Keen of Elie]

As I understand it, the title will not exist in the amended 1998 Act. The title is a matter for the parliamentary draftsmen but, as my noble friend Lord Forsyth observed, the amendment was put on the Marshalled List and therefore it is addressed. As I say, I will reflect upon his observations, but at this stage I urge him to withdraw the amendment.

[Lord Forsyth of Drumlean]

My Lords, I am very happy to withdraw it. I am grateful to my noble and learned friend for relieving me of the responsibility for adding to the statute book the words, “Competence of the Scottish Parliament”. But the point remains that it would be ridiculous to put the Sewel convention into statute and to retain a reference to the Sewel convention. If he is saying, as the noble Lord, Lord Purvis, has very helpfully indicated, that in the consolidated Bill the words “the Sewel convention” will disappear from statute and that the Sewel convention will cease to exist as such because it will now be incorporated in statute, I am absolutely delighted. I am happy to withdraw the amendment with that reassurance. Perhaps he could just give us that assurance and then there will be less for him to reflect on.

[Lord Keen of Elie]

The term “the Sewel convention” will remain in this Act but will not appear in the amended Scotland Act 1998, which is going to be the relevant amended legislation.

[Lord Forsyth of Drumlean]

Right, well, I beg leave to withdraw the amendment but give notice that we will return to this at a later stage in the Bill.

--- Later in debate ---

[Lord Davidson of Glen Clova]

Perhaps I can try to explain the proposition put forward by the noble and learned Lord, Lord Hope, in his amendment. As we see this, it reflects the reality of the way in which legislative consent Motions have been used over the 15 years, beyond the original.

[Lord Keen of Elie]

I am obliged for the contributions that have been made with regard to Clause 2 and the proposed amendments thereto. I shall begin by making an observation on a point made by the noble Lord, Lord Stephen, with regard to English votes. The provision with regard to English votes does not limit the sovereignty of this Parliament in any sense. English votes introduces the principle of English consent for English measures. The new procedures maintain the important principle of Members of Parliament from all parts of the United Kingdom being able to deliberate and vote on all legislation. Members of Parliament are not excluded from the legislative process. I would not accept the proposition that these provisions somehow derogate from the sovereignty of this Parliament.

[Lord Stephen]

Does the Minister accept that the House of Commons could pass something and the House of Lords could agree with that proposal but it could then be vetoed by the subgroup of the House of Commons who are defined as English Members of Parliament?

[Lord Keen of Elie]

I am not quite sure about the use of the term “veto”.

[Lord Stephen]

Would the Minister prefer “block” or “prevent being enacted”?

--- Later in debate ---

[Lord Keen of Elie]

It merely means that in respect of matters that are English measures, there must be an element of English consent, but I do not accept that that derogates from the sovereignty of this Parliament. In due course, this Parliament might decide to legislate contrary to those provisions.

[Lord Forsyth of Drumlean]

While it is true that legislation still requires the consent of both Houses, EVEL gives a group of Members of the House of Commons who are English MPs the ability to veto a provision so that it proceeds no further. I think that is the point that the noble Lord is making.

[Lord Keen of Elie]

The term “veto”, if you wish to employ it, is there. It means that English measures require the consent of English Members, but it does not derogate from the sovereignty of this Parliament.

Clause 2 delivers paragraph 22 of the Smith agreement which sets out quite clearly that the Sewel convention will be put on a statutory footing. As with Clause 1 on permanence, the Smith commission agreement did not intend that the constitutional position should be changed, but that legislation should accurately reflect the position that already exists and has existed for 15 years.

I shall put this into context. Section 28(7) of the Scotland Act 1998 makes it perfectly clear that this Parliament can legislate in respect of Scotland in all matters, including devolved matters. It preserves the sovereignty of this Parliament.

[The Duke of Montrose]

When the Minister talks about the Sewel convention as it has been for 15 years, that does not include the various modifications that have been introduced in the 15 years. The Government will have to be careful about how they describe it.

[Lord Keen of Elie]

I am obliged to his Grace. That does not, and that is why the convention is expressed as it is in Clause 2. There has been Devolution Guidance Note 10 with regard to how from time to time the convention may operate, but those are working arrangements which may alter from time to time and should not be enshrined in statute. That is not considered appropriate. That is why Clause 2 is in the terms in which it is found—because it reflects paragraph 22 of the Smith commission agreement.

My understanding of why the Sewel convention came to be expressed as it was is that Section 28(7) of the Scotland Act allows this sovereign Parliament to legislate, notwithstanding the terms of the 1998 Act, in respect of all matters pertaining to Scotland. There was, I apprehend, concern that if, for example, in a devolved area of competence, such as education or health, the Scottish Government got into serious difficulty, this Parliament might be open to the criticism that it had done nothing about it, even though it reserved to itself the power to legislate for Scotland on devolved matters in terms of Section 28(7). Therefore, the convention was expressed that normally this Parliament will not legislate for Scotland in devolved areas. That was expressed in those terms in order that this Parliament would not face criticism that it had done nothing as the health or education service in Scotland had deteriorated in the face of legislation from the devolved Parliament. That is the background to the introduction, as I understand it, of the Sewel convention. It works both ways.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend. Does that mean that as the number of passes being achieved by school leavers since I left office back in 1997 has fallen by 20% compared with England, there is still the possibility that we might intervene in the hash that is being made of the education services by the present Government in Scotland? I assumed that the answer to that question would be absolutely not, so what is my noble and learned friend getting at?

[Lord Keen of Elie]

The point is that in terms of Section 28(7) we in this Parliament could, on the face of it, intervene in such a matter. That was the whole point of the convention: to make it clear that normally we would not do so. I may have misunderstood the intervention of my noble friend Lord Forsyth but, with respect, it seems to me that that is precisely why the Sewel convention was expressed in the terms in which we find it—so that if educational attainment in Scotland was failing we would not be faced with the criticism that the United Kingdom Parliament had done nothing about it because conventionally we would not normally intervene in a devolved matter, but we retain sovereignty and we have the right to do so. That is why the Sewel convention is expressed in the manner in which it is. The intention is not that Clause 2 should give rise to any justiciable issue. It is a political expression of the convention in statutory form. That is why the term “normally” appears within Clause 2. It makes it clear that this is not a justiciable issue. It is quite clear that in terms of the Smith commission agreement the Sewel convention will be expressed in statutory terms. It is there, but whether this Parliament would consider it appropriate to legislate for Scotland in a devolved area, which it can do pursuant to Section 28(7) of the Scotland Act 1998, is a political issue. It would not be for a court to decide what “normally” meant in that context. It would be a political issue. If it could be litigated in court and made justiciable, the question would be: what possible remedy could the court provide other than a political one? That is why it takes us back to the simple proposition that Clause 2, as set out, would not give rise to a justiciable issue. I give way to the noble and learned Lord, Lord Hope.

[Lord Hope of Craighead]

The problem is that paragraph 22 of the Smith commission report states that the Sewel convention will be put on a statutory footing. Rather like the noble and learned Lord, Lord McCluskey, I wondered what “statutory footing” meant, and I went to various sources to find out. A translation of it is fairly obvious: it means being put on a firm footing by being written into statute. That raises the question of what the effect is of writing something into statute.

The problem is that, whatever the Minister may say, someone seeing it written into statute is going to say, “Here is something which I can use to challenge a piece of legislation that is apparently being passed without the Sewel convention being observed according to its current usage”. With great respect, it does not do for a Minister to say to the court, “This is just a political matter”, because the judges will say, “It’s a matter for us”. The judge may look at the normal rules to see what the legislation was designed to do, and with a bit of research they will find that it was designed to give effect to the Sewel convention to put it on a statutory footing. The judge will then say, “Well, it’s a matter for me to construe what this means”. I am not at all impressed by the Minister saying that it is all a political matter, because it is now in the hands of the court to adjudicate upon.

The Minister asks, “What remedy does that give rise to?”. It creates uncertainty about the effectiveness of legislation. One of the things that we have to be very careful about is that the legislative process is well founded and not open to challenges, except those that are already subject to legislation in the Scotland Act. So, with great respect, it is necessary to warn the Minister that he cannot get away with assuming that the judges will accept that it is simply a political issue; it is not that at all, once it is written into statute.

[Lord Keen of Elie]

The noble and learned Lord acknowledges that there would be no remedy other than a political remedy in that context, or appears to do so. He shakes his head; nevertheless, there is no remedy except a political remedy. This underlines the importance of the words “recognised as” and “normally” where they appear in Clause 2.

However, the noble and learned Lord, Lord McCluskey, spoke to his Amendment 19, a proposal that it should be expressly stated that the clause is not justiciable and does not give rise to justiciable rights. That is a matter that I would be pleased to discuss with him, albeit that the Government’s position at present is that there is no requirement to expressly state that in the context of a clause that, on the face of it, is implicitly not justiciable. That would be my position on Amendment 19.

[Lord McCluskey]

On that point, this provision can be put in to render the matter not justiciable, but that is in the context that the decision would in fact be taken by the UK Parliament and that decision could not be challenged in court. The point about the Sewel convention, which the Minister says is being enshrined in legislation, is that the effect changes entirely because the Sewel convention was not justiciable at all, as I understand it, whereas the statute is always justiciable. The court cannot say, “We don’t want to give it a meaning”; the court has to find a meaning because it always has to answer the question before it.

[Lord Keen of Elie]

In that context, it would be declaring that this is a clause that gives rise to only a political remedy, and that it was not for the court to intervene and determine whether a particular piece of legislation was normal or abnormal. That would not be an issue for the court, and that is the position of the Government with regard to the clause. That could be made clearer, or could be made express, but, as I say, I would be happy to discuss that in the light of the noble and learned Lord’s proposed amendment.

[Lord Cormack]

If the Minister is prepared to have those discussions, which are welcome, would he also be prepared to have a discussion with those of us who have signed the amendments to delete the word “normally”? I say very gently to him—echoing someone who should not be echoed in this Chamber, Cromwell—conceive it,

“possible you may be mistaken”.

[Lord Keen of Elie]

I would respond to my noble friend by saying that anything is possible.

[Lord Scott of Foscote]

The debate at the moment seems to be concerned exclusively with primary legislation. Clause 2 is concerned with primary legislation made by Parliament, but the bulk of legislation these days is made by statutory instrument—made under powers that are granted by Parliament, of course, and many of these are existing powers—but I cannot see anything in the Bill that really grapples with the position of statutory legislation as opposed to primary. I wonder if that is an oversight or whether it is intended.

[Lord Keen of Elie]

If I may, I shall respond to the observations from the noble and learned Lord, Lord Scott, after the dinner break. I confess it is not immediately apparent to me what the thrust of his point was, and maybe I am missing it, but I shall give it some consideration.

[Lord Lawson of Blaby]

If the Minister will allow me, those of us who are not as expert as he is are getting a little puzzled. Can he help the House by giving practical examples of the sort of circumstances in which the UK Parliament would legislate on devolved matters? A few such examples would be helpful for us to understand precisely what this is getting at.

[Lord Keen of Elie]

In a sense, this is connected to my earlier observation that at the end of the day the clause is not justiciable. It will be for Parliament at the time to decide that it is or is not going to legislate for Scotland in a devolved matter. The term “normally” means “usually” or “generally”, but Parliament at the time may decide that it is going to legislate for Scotland in respect of a devolved matter. There is no limit on that power, as is expressly provided by Section 28(7) of the Scotland Act 1998. There is no limit on this Parliament’s sovereignty and supremacy in respect of that matter. The Sewel convention merely says that normally it will not do so; that is all.

[Lord McCluskey]

Does the Minister realise that if the UK Government decide that the situation is abnormal and therefore decide to legislate, and the Scottish Government go to a Scottish court and say, “We don’t agree with the judgment about normality”, the court will have to make a judgment about that if the word “normally” remains in the wording. There is no mechanism for that other than the court having to sit down and decide what it thinks Parliament intended when it used the word “normally”.

[Lord Keen of Elie]

With respect to the noble and learned Lord, Lord McCluskey, I do not accept that proposition. It would be for the court to say that Parliament decides whether it is normal to legislate for Scotland in a devolved matter. It is not for us to interrogate that decision by Parliament. “Normally” means just that—no more, no less. It is not for the courts to say, “We don’t think the situation was abnormal”. That is a political decision.

[Lord McCluskey]

My Lords—

[Lord Keen of Elie]

I will not accept an intervention at this stage.

[Lord Foulkes of Cumnock]

Then get on with it.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Foulkes.

[Lord Purvis of Tweed]

Will the Minister give way?

[Lord Keen of Elie]

In view of the time, no.

Amendment 11 would clearly impact on the ability of the United Kingdom Parliament to make laws for Scotland. To that extent, it would modify Section 28(7) of the 1998 Act. The effect of that amendment could be interpreted as an attempt to limit the sovereignty of this Parliament, a point that I believe the noble Lord, Lord Stephen, acknowledged, and the Government would not be prepared to accept such an amendment.

Amendment 13, conversely, seeks to state in the Bill that Clause 2 places no limits on the sovereignty of Parliament. We would say that if you say that expressly in one part of the Bill, you have to take care as to the impact that it will have on other parts of the Bill, and that it is appropriate to acknowledge that nothing in the Bill impinges on the sovereignty of Parliament.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, before my noble friend withdraws his amendment, can I ask my noble and learned friend a question, as he would not accept an intervention? We are in Committee. I am not a lawyer, but earlier in our discussions I gave the example of where the Scottish Government have fallen down on education in the context of his remarks that we retain the right to pass legislation on education, health or other matters where we feel that they are falling down. I put that forward as a debating point, but in circumstances where a Government, perhaps led by me, decided to do this, it would be outrageous if it was a political decision to intervene on an education matter based on a belief that the Scottish Government —an elected Government—were not doing their job. Therefore, if I were on the other side, leading the Scottish Government, I would go straight to the courts and say, “This word ‘normally’ does not provide for the kind of intervention which is being provided”. I do not understand why my noble and learned friend says that the courts would not take a view of what “normally” meant, and in fact, in this case, if I were the judge I would say, “Actually, ‘normally’ means ‘exceptional’”, but they may take a different view. That is what is causing the concern among the lawyers. However, in common sense terms, to have a word such as “normally” and to argue that there would not be judicial challenge and that, if there was, the courts would just walk away from it, cannot be right. Can my noble and learned friend explain why I am wrong?

[Lord Keen of Elie]

I do not accept the proposition that my noble friend Lord Forsyth advances. The position is that this Parliament is sovereign; in terms of Section 28(7) of the 1998 Act it may legislate for Scotland in all and any matters, including devolved matters. The Sewel convention simply expresses the view that this Parliament will not normally do so. However, that does not fix some black-line test to be applied by the courts as to what is normal and abnormal; it will be a matter for Parliament going forward to decide if or when it would ever legislate for Scotland in respect of a devolved matter.

[Lord Norton of Louth]

My noble and learned friend’s argument was that the Bill puts into statute the recommendations of the Smith commission, and in this case, recommendation 22:

“The Sewel Convention will be put on a statutory footing”.

Surely on his own argument the Government will have to withdraw Clause 2, not only on the grounds of what constitutes a statutory footing but because it embodies the words of Lord Sewel, which he spoke when the Scotland Bill was before Parliament, and not the convention as understood at the time the commission produced its report.

[Lord Keen of Elie]

I do not accept that, because it appears that what is understood by the Sewel convention is the expression of that convention by Lord Sewel during the passage of the Scotland Act 1998 through Parliament. I indicated before the sundry working arrangements that developed and changed over the passage of the 15 years after that convention came into place, such as DGN10, which is why there is no attempt, and properly so, to express those working arrangements in statutory terms within the Bill.

[The Duke of Montrose]

Can the Minister say whether that means that there will be a new convention that includes those elements?

[Lord Keen of Elie]

It may be that further working arrangements will develop as between the two Parliaments with respect to legislation that touches upon devolved matters. However, the provision as expressed in the Bill is simply that as expressed by Lord Sewel at the time the Scotland Act passed through Parliament in 1998. It merely says that while in terms of Section 28 we have the power to legislate for Scotland in all matters, including devolved matters, we will not normally do so.

[Lord Stephen]

As noble Lords will know, the Liberal Democrats are very supportive of the Bill, but the explanation just given by the Minister of the Sewel convention and the issues around it worries me greatly. From the outset, I say that I strongly support the amendment in the name of the noble Lord, Lord Cormack, which would leave out “normally”. It seems that much of the Minister’s argument about protecting the sovereignty of the UK Parliament hangs on retaining the word “normally”, because that then gives the UK Parliament very wide discretion, as I read it, to legislate, as the Minister explains it, in areas that could include education, transport, housing, health and all the issues that are the very stuff of the Scottish Parliament. If that is the Minister’s intention, that is hugely controversial. I will say no more than that, because I do not want to develop this issue into a major argument on these points.

However, let me be clear. Back in 1998, when the Sewel convention was introduced, it was not in any circumstances with a view to this Parliament stepping in to legislate in the areas of transport, health and education if the Scottish Parliament was to make a mess of it. That was absolutely not the reason why it was introduced. Its wording and the reasons for its introduction are quite clear; they are here in Clause 2, which says that,

“it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

Therefore, even by the Minister’s own explanation, the consent of the Scottish Parliament to legislate in these potentially controversial areas would be required, and it would not happen. There is no way that the Scottish Parliament, in terms of the Sewel Motion as it went back to 1998, would cover legislation in health and education—