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Lord Filkin: Given my recent experiences, I am slightly hesitant to give off-the-cuff judgments on the law on eligibility. I will consider that, however, and if by the time I come to the end of my wind-up speech I am able to give a better answer, I will do so. Otherwise, I will write to the noble Lord.
We will ensure that children and other vulnerable persons continue to receive appropriate care, while at the same time enabling families to stay together by
accepting the offer of a journey home. In particular, those with special care needs will continue to have them met until the date of travel. If they do not travel and they have not provided an acceptable excuse—for example, that they were too ill to travel, with a supporting medical certificate—then care will be reduced to the minimum level in order to comply with the European Convention on Human Rights.We will also need to guard against those who may seek to abuse the support and facilities offered to them. Local authority resources need to be preserved for those who are in genuine need. For example, I well recollect Birmingham City Council pointing out the serious knock-on effect of their exposure to costs in this respect on caring for the elderly and children in need in their area. For that reason we are introducing two new offences as part of this measure. First, it will be an offence for a person to accept the offer of short-term accommodation and/or a journey home and then to return to the UK and claim these benefits again. The Committee will see why.
Secondly, to help ensure that local authorities have the best information before them when considering a request for support under these provisions, it will be an offence for a person to fail to mention any previous request for support under these measures.
As has been mentioned, we are also placing an obligation upon local authorities to report to the Secretary of State if the prohibition on granting types of support listed in this amendment apply to failed asylum seekers or to persons unlawfully in the UK in the authority's area. This will facilitate the Home Office instigating removal action against appropriate individuals.
Lord Dholakia: I apologise for disturbing the flow of the Minister's speech, but what sanctions are available to the Government if the local authority do not co-operate in terms of informing either the failed asylum seekers, or for that matter a person illegally settled in this country?
Lord Filkin: Let me add that to the list of issues to which I will seek to respond when I conclude. I will touch more specifically on the question posed by the noble Lord, Lord Greaves, about the duty to report to the Home Office.
If a local authority has reasonable suspicion that a person is here unlawfully or a failed asylum seeker is in their area, they will be required to report it to IND, and I think that that is right. If people have no right of residence here, local authorities, as responsible public bodies, should co-operate with central government on their removal.
The exact nature of this provision and how it will operate will be laid out in regulations, drawn up in full consultation with the LGA. I will return to the LGA later.
Officials in the department, in consultation with colleagues from other government departments, will provide practical guidance and assistance to local authorities to assist them in undertaking this duty.
Again, that guidance will be the subject of very full consultation and discussion with the LGA and any particular local authorities that wish to become actively involved in it.The question was raised by the noble Lord, Lord Greaves, of the definition of a failed asylum seeker. I believe that the noble Baroness, Lady Carnegy of Lour, gave the correct answer. A failed asylum seeker is somebody who has been through the appeal process, not someone with a first refusal. It is somebody who has either appealed and the appeal has been heard, or who has not chosen to exercise their appeal and is time-expired.
The noble Lord, Lord Greaves, also asked if this could breach legal Community treaties. That is not so. Paragraph 3(b) of the schedule provides that a person's Community rights cannot be affected. Community law rights will take primacy. Any right to support under Community law will be respected.
The noble Lords, Lord Greaves and Lord Dholakia, asked about paragraph 15 applying by order to a new class of person, which touches the concern of the noble Lord, Lord Renton, as to whether paragraph 15 was a Henry VIII clause.
Lord Renton: I must apologise. When I said that paragraph 15 was a Henry VIII clause I had overlooked the fact that in paragraph 16 any order that the Secretary of State makes must be made by statutory instrument, so Parliament will have the opportunity.
Lord Filkin: As ever, the noble Lord, Lord Renton, has pre-empted me. It will be subject to affirmative resolution and it is intended to give maximum flexibility in the future application of this provision. That is therefore why it will be subject to parliamentary scrutiny. It is in recognition of the likely complexities of the provision which operates in practice. As the noble Lord, Lord Greaves, has signalled, it is an extremely complicated area of law and it may well be that there is a need to look at how it is fine-tuned in the future—but by affirmative resolution.
The noble Lord, Lord Greaves, asked about the relationship to habitual residence tests. If, for example, a local authority chose to support a family for six months under the National Assistance Act provisions, at the end of that time they would have met the habitual residence period and the burden for welfare support would fall to national government. While we recognise that, in an ideal world, we would not wish to fetter a local authority's discretion, we firmly believe that it is right to do so because the consequences bear on health authorities and central government.
The noble Lord, Lord Kingsland, raised some significant questions about the unnecessary fettering of local authority discretion. That was the first question raised by the LGA. I have made it clear that a number of local authorities considered that the Government needed to act on this. The largest local
authority in the land and a number of others with considerable experience have said that this needs to be addressed as a serious issue. We have sought to respond to that.Our concern is that if we just extinguished the right under the National Assistance Act and the Children Act, a local authority that was keen on pursuing such a policy might be able to say that Section 2 of the Local Government Act gave it the power. Therefore, with reluctance, we have had to make it explicit that that is not an option; otherwise we would not have closed the loophole. We think that it is necessary to put the issue beyond doubt and to limit the discretion of local authorities in this way.
On the LGA's third point, the best I can say is that I do not think that we are particularly proud of the attempts that have been made at consultation on the principle of this so far. I hope that noble Lords will not press me further than that. There have been busy telephone conversations recently and discussions with the chairman of the LGA, who recognises that it is important that discussions between officials continue on the principle as well on as the implementation detail.
There are already dates for meetings to discuss the implementation detail, but despite there having been an attempt—albeit a rather weak one—to have consultation about the principle, it is fair and true to say that the LGA has not been invited to a discussion about the principle. We are not eager to have our minds easily changed on the subject, but it is part of the proper process that the LGA should be given an opportunity to do so and that we should consider its representations. I told officials last Thursday or Friday that if the LGA can show that it is not necessary to act against the Local Government Act in the way we suggest, our minds will be open to consider the argument, but I find it difficult to see how the LGA's power runs to give an assurance that a local authority might not use that if we did not extinguish it.
I hope that that mea culpa, in a sense, signals that we are intent on engaging the LGA in the implementation detail and on the principle, even at this stage of the process.
Lord Kingsland: I am most grateful to the Minister for giving way and for his frank description of what happened with respect to consultation. The obvious concern, not just from these Benches, but from around your Lordships' House, is: what price constitutional devolution, which depends so much on the concordat and protocol system? Because the Minister has been so frank, I am not accusing him of being engaged in something wrongful. I am simply hoping that, in future, greater respect will be paid to the concordat system. It is fundamental to the Government's constitutional philosophy, as I understand it, that decisions should be taken at the lowest level possible and that the process should be controlled not by law,
but by a system of conventional agreements between local authorities and central government. I hope that the breach on this occasion will prove a rare one.
Baroness Carnegy of Lour: On the same point, I notice that most of the Acts that local government will not be able to operate under if the provision becomes law relate to functions that are devolved to the Scots Parliament. Has the Scots Parliament agreed? Was it not consulted as well as local authorities? It astonishes me that the Government could go far on this without consulting local government. I had not heard from the local authorities, which is why I did not mention those points; but now that the situation has become clear to me, I am surprised. What about the Scots Parliament?
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