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Lord Kingsland: Whichever way the noble and learned Lord looks at it, a court in this country will not strike down a procedure that is held to be contrary to Article 6. The furthest that it can go is to make a declaration of incompatibility.

On the long line of jurisprudence that the noble and learned Lord cited about Article 6 one thing is clear. In so far as the SIAC procedure has dealt with the deportation of aliens, or the incarceration of aliens because to deport them would breach Article 3 of the
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European Convention on Human Rights, it is clear that Article 6 rights do not apply to them because under the court system, civil rights are not in issue. In my submission, if our own courts looked at the application of Article 6 rights to British citizens—whatever else you can do with British citizens, you cannot deport them—I believe the answer would be wholly different.

Lord Fraser of Carmyllie: Is not my noble friend Lord Kingsland absolutely right about this? As I am sure the noble and learned Lord will recollect, when the Scotland Act 1998 was brought into force, one of the provisions in that statute was that the European Convention on Human Rights should be brought into force with immediate effect. The fact of the matter was that it was brought into effect in Scotland a year before it was brought into effect in the rest of the United Kingdom. In such circumstances, if my noble and learned friend Lord Cullen was dumb enough to introduce rules into the Court of Session which were in some respects not compliant with the European convention, other members of that court would strike them down. That must be the case. It is not a matter, as my noble friend Lord Kingsland says, that it might be compliant, or there could be some judgment of non-compliance; it has to comply under the law.

What I am struggling to understand is the noble and learned Lord the Lord Chancellor saying, "We can sort of do it in England and we shall try to ensure that it complies with the European convention". What we in Scotland are trying to be clear about concerns the absolute requirement in law that what is introduced in Scotland is compliant with the European Convention. There can be no doubt or grey area about that which the courts might sort out sooner or later.

I am surprised that the noble and learned Lord did not listen to what the noble and learned Lord, Lord Cullen, said in a most interesting intervention during the Constitutional Reform Bill when he pointed out, absolutely correctly, that there is no such thing as a decision of the House of Lords in its judicial capacity; there is a decision of the House of Lords in a Scottish case, or a decision of the House of Lords in an English or some other case. Lawyers are not that dumb. If there is a decision by the court in England in an English appeal by the House of Lords, it is to be expected, if they are going to be consistent, that they will come to much the same or exactly the same conclusion in Scotland. Nevertheless, there are two separate sets of appeals.

What is fascinating about this debate is that it underlines and highlights for the first time that we have a statute passed by this Parliament in 1998 which said, "You must secure compliance with the European Convention on Human Rights in Scotland". However, it does not say the same thing for England and the rest of the United Kingdom. That is what we are trying to tease from the noble and learned Lord, to understand exactly what the situation is.

Lord Falconer of Thoroton: I am grateful for the opportunity to clarify the matter. First, I accept
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entirely that rules promulgated by the Lord President must comply with the European convention and, if they do not, they can be struck down by the Court of Session or, indeed, by any other court that looked at them. Secondly, the rules promulgated by the Lord Chancellor, having consulted with the Lord Chief Justice, also have to comply with the European Convention because they are not primary legislation. It is not a question of whether or not a declaration of incompatibility is given. Short of primary legislation, a public authority in England and Wales cannot act incompatibly with the European convention.

I am sorry that I did not make it clear before—this is entirely my fault—that I agreed entirely with proposition number one and proposition number two. The third proposition that the noble and learned Lord, Lord Fraser of Carmyllie, made was that I should have listened to what the Lord President, the noble and learned Lord, Lord Cullen, said about there being no such thing as a decision of the House of Lords sitting in a judicial capacity. I say with great humility that I did listen to what the noble and learned Lord, Lord Cullen, said, and I agreed with him an amendment to the Constitutional Reform Bill that I then put before this House. This House agreed with it because it also listened to what the noble and learned Lord, Lord Cullen, said. I always listen to what the noble and learned Lord, Lord Cullen, says.

Lord Phillips of Sudbury: Has not the Committee slightly lost the track of this debate? Surely we should be talking about the merits of the rules that are ultimately put forward. All sorts of rules could be compliant with the European convention without commending themselves to this House or to any other House. I must confess that non-lawyers listening to this debate must wonder where we are getting to. Surely merit is what we are talking about, not the European convention.

7.45 p.m.

Lord Kingsland: I wholly agree with the noble Lord, Lord Phillips. That debate will take place later tonight. I promise that this will be the last time that I rise to my feet in the course of discussing this amendment. Will the noble and learned Lord the Lord Chancellor guarantee that out of all this we will find a set of rules which are the same in England, in Scotland and in Northern Ireland? It would be quite intolerable if the rights given to, or obligations imposed on, potential controllees differed from one part of the United Kingdom to another. Quite apart from whatever these rules are going to be, can I have the noble and learned Lord's assurance that they will all say the same thing?

Lord Falconer of Thoroton: Of course I cannot give that guarantee. Any noble Lord will know perfectly well that I cannot give that guarantee. Noble Lords will know that in Scotland there are procedures to deal with contempt which may lead to imprisonment, as is the case in England and Wales, and they have different
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rules. However, I do not suggest for one moment that either of those sets of different rules is unfair. Therefore, the answer is no.

Lord Kingsland: With great respect the noble and learned Lord knows exactly what I mean. It is true that each jurisdiction has its own special way of dealing with certain things procedurally. I was plainly referring to the substance of the rules and the substance of the protections that lie behind them. That is the guarantee that I seek. However, I think that the noble and learned Lord needs time for repose and reconsideration. Therefore, I shall not press him further. I shall simply beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I suggest that the Committee stage begins again not before 8.45 p.m. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Social Security Benefits Up-rating Order 2005

7.47 p.m.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham) rose to move, That the draft order laid before the House on 1 February be approved [8th Report from the Joint Committee].

The noble Baroness said: My Lords, I beg to move that the draft Social Security Benefits Up-rating Order 2005 and the draft Guaranteed Minimum Pensions Increase Order 2005, which were laid before this House on 1 February, be approved. I am satisfied that both these instruments are compatible with the European Convention on Human Rights.

As your Lordships are aware, these draft orders are a routine annual event but nevertheless they are an important part of DWP business. The uprating order will, as usual, increase most benefits from April in line with the retail prices index for national insurance benefits and the Rossi index for income-related benefits.

For the 12 months ending in September the retail prices index rose by 3.1 per cent and, in the same period, the Rossi index rose by 1 per cent. The Guaranteed Minimum Pensions Increase Order sets out the amount by which contracted-out occupational pension schemes must increase members' guaranteed minimum pensions which accrued between 1988 and 1997.

Where the annual increase in the retail prices index exceeds 3 per cent, the guaranteed minimum pensions indexation requirement is capped at that level under the primary legislation. This year's order therefore
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provides for an increase of 3 per cent. The estimated cost of uprating benefits for 2005–06 is £2.92 billion. Of that, £2.1 billion goes to pensioners. Some £440 million is for disabled people and their carers, around £300 million is for working age people and £80 million is for children, of which £60 million is above inflation.

I shall first spend a moment on the subject of pensions. We continue to show our commitment to tackling pensioner poverty. In this order, we are again doing more for older people. We have kept to our guarantee to uprate the basic state pension by the higher of 2.5 per cent or the increase in RPI. Uprating this year is in line with the RPI at 3.1 per cent. This will give an increase of £2.45 to £82.05 per week for a single pensioner, and of £3.95 to £131.20 per week for a pensioner couple. Pensioners have seen a 7 per cent real terms increase in their state pensions as a result of previous above-inflation increases.

We continue to target our resources toward the poorest and the guarantee element of pension credit will increase by 3.8 per cent, in line with earnings. In April, the guarantee will rise from £105.45 to £109.45 a week for a single person, and will increase to £167.05 for a couple. This approach means that by 2008 there will be half a million fewer pensioners in poverty than there would have been if the guarantee had been uprated in line with prices.

The pension credit savings element threshold will increase in line with the basic state pension to £82.05 for a single person and £131.20 for a couple. This savings element ensures that people aged 65 and over who have been able to make modest provision for their income in retirement are rewarded. From April 2005, single people with an income up to £151, and couples with an income of up to £221, may qualify. There are now 2.65 million households—some 3.22 million individuals—receiving pension credit. Over 1.99 million pensioner households are receiving more money as a result of pension credit, gaining on average £17.46 a week. Pension credit is helping over 2.14 million older women, who form around two thirds of the total beneficiaries.

To help older pensioners with living expenses, including council tax bills, there will be an age-related payment of £50 made with winter fuel payments for 2005–06 to households with someone aged 70 or over. Between 1996–97 and 2002–03, the poorest pensioners have seen their incomes grow at similar rates to the richest pensioners. The incomes of the poorest fifth of pensioner couples have grown by 14 per cent, while the richest fifth saw their incomes grow by 11 per cent.

We will be spending £10 billion extra on pensioners in 2005–06 compared to the 1997 system. Around half of this—£5 billion—will go to the poorest third of pensioners. In 2005–06, pensioner households will be an average of £1,350 per year—about £26 a week—better off as a result of our tax and benefit policies than they would have been under the old 1997 system. The poorest third of pensioners will be £1,900 per year better off on average.
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Let me now turn to children and families. To support parents, standard rate statutory maternity pay and maternity allowance will increase from £102.80 to £106.00. By 2007, the maximum maternity pay and child benefits for mothers at home with their first baby will have risen by £5,000 in real terms since 1997. Non-dependant deductions in income-related benefits have again been frozen. This illustrates our constructive response to criticism that they were too high, and will benefit around 190,000 claimants.

Our fight against child poverty continues. Families receiving income support and jobseeker's allowance will continue to benefit from the increased generosity in child tax credits. The child element of the child tax credit will increase to £1,690 a year in April 2005. This is an increase of £245 since its introduction in 2003, and is £65 above this year's rate. It will benefit over 7 million children in almost 4 million families.

Child allowance will increase from £42.27 to £43.88 and the disabled child premium, which is in addition, will also increase from £42.49 to £43.89. The enhanced disability premium for a child will increase from £17.08 to £17.71.

By 2005–06, total spending on financial support for children will have gone up by over £10 billion in real terms since 1997. Families with children will be, on average, £1,300 a year better off as a result of Government reforms in the tax and benefit systems since 1997. The poorest fifth will be £3,000 a year better off. I am sure that noble Lords will agree that that is significant progress.

In speaking to this uprating order, I have concentrated on the financial situations of pensioners and children. I have not spoken about disabled people because we have only recently completed the Disability Discrimination Bill and I thought that it was more useful to refer to the other groups in our society who have not recently had your Lordships' attention. I hope that your Lordships will welcome the good news in the uprating order and will accept it tonight. I commend the orders to the House.

Moved, That the draft order laid before the House on 1 February be approved [8th Report from the Joint Committee].—(Baroness Hollis of Heigham.)

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