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The noble Lord, Lord Razzall, at least had the decency to say that this was never going to be easy, but it is easy to carp. At least the Government are doing something about an issue that has blighted so many operational aspects of our society for so long. Everybody goes on about business, but charities also suffer, and have noble Lords tried running a hospital, school or prison lately? Government is about having consultations and then making a decision in the light of them. That does not make everybody happy, but implementation is the key, and that is what we should be judged on. There is a duty on the Minister to conduct a review of any order three years after its implementation, which is a start, and a regulator will not be judge and jury because there will be an appeal to an independent tribunal. The noble Lord mentioned that my former colleagues in the CBI have come out against many aspects of the Bill, but I remind him that the CBI was wrong about the minimum wage way before I arrived, and it is wrong about the Bill way after I have gone.

The noble Viscount, Lord Colville, referred to a pizza parlour in Dudley, which is presumably near Culross. Whether the primary authority is Dudley or Walsall is important, and we have to ensure that the regulatory environment is clear, transparent, well understood and very speedy in implantation. However, no amount of regulation will ever stop every rogue pizza parlour doing something wrong. The key is what happens when that happens. In that, to concentrate on the 0.1 per cent of businesses that might get it wrong and bring all legislation to bear in the light of that 0.1 per cent, thus removing the opportunity to make life so much easier for 99.9 per cent of businesses, charities and public sector organisations, is not what government is about.



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I assure the noble Lord, Lord Cope, that small business is at the heart of what we are trying to achieve. He referred to the British Chambers of Commerce’s assessment of the costs of regulation. It said that it is £55 million, but that includes the amount that people had to pay to comply with the minimum wage. It is not just the red-tape costs. The role of regulation in British society is different from what has to be paid to get there. The British Chambers of Commerce did not make that distinction.

My noble friend Lord Borrie heard the mention of Dudley and Walsall with interest because when I was just starting out in the law in Birmingham, he was dean of the faculty of law at the University of Birmingham. I am delighted that he referred to the wider, better toolkit that is available, and I have to remind the noble Baroness, Lady Wilcox, that consumers will benefit from the wider, better toolkit, not necessarily businesses.

The noble Lord, Lord Sainsbury, pointed to the absence of sunset clauses in this legislation. It is not intended that there will be sunset clauses, but Part 1 allows for the dissolution of the LBRO when its objective has been achieved. Automatic dissolution is as near to sunset as you will get. Part 3 contains a review clause that compels the regulator three years after implementation to review the way that sanctions are being used and allows for the suspension of some of them in many cases.

The noble Lord, Lord Haskins, talked about the LBRO being another quango, but it is different from a quango in one way because I have never known a quango at its inception allow for its dissolution when its objective has been achieved.

The noble Baroness, Lady Young, said that she was attempting to conduct a hatchet job. I find that very sad because to come to a bona fide attempt to improve the regulatory environment with that type of prejudice will get us nowhere. But I guess that regulators will always do that in their stout defence of the status quo and, as somebody almost said many years ago, “She would say that, wouldn’t she?”. The noble Baroness also mentioned that this is “very, very silly law”. Businesses up and down the land, every day and every way, have to deal with the very, very silly laws of unintended consequences of environmental regulation that were never changed because the regulator can hide behind the very walls that the Bill aims to knock down despite predictable bleatings.

I welcome the input from my noble friend Lord Berkeley. He can be assured that small businesses will definitely benefit from better, predictable enforcement. In relation to the last part of the Bill, I read with interest the recent report of the Select Committee on Regulators on the UK’s economic regulators and its recommendations relating to the impact of their work on business, in particular how any unnecessary burdens arising from their crucial role might be kept to a minimum. We might have a particularly useful debate on how this part can most effectively give voice to what has come out of that report.



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The noble Lord, Lord Hodgson, can be assured that nothing in the Bill affects duplication with the compliance code. There is no duplication; this is not another layer. Indeed, if anything, it is bottom-up, not top-down. That is why it is different; that is why I am so personally interested in it. It is responding to what business wants. We consulted all the organisations—the IoD, the FSB, the BRC, the EEF and the CBI—and did what they wanted from the bottom up. We have talked to regulators. We have talked to local authorities. We have even listened to central government officials as well.

The Bill creates a degree of independence and a degree of transparency, and brings experts into the field. My noble friend Lady Turner raised some very serious issues concerning liability for breach of health and safety legislation. I hope that the Bill will make that field a little clearer and easier to understand for those who justifiably find it difficult. I remind her and my noble friend Lord Rosser that although I hope that the Bill brings a better balance between consumers, regulators, business and other organisations in the public sector, it does not remove exposure to criminal prosecution. That remains—and importantly so.

I say to the noble Baroness, Lady Hamwee, and the noble Viscount, Lord Eccles: therein lies the rub. How do you achieve the maintenance of local, democratic connection and at the same time provide, in a society and commercial world that must be globally competitive or die, a degree of predictability—a level playing field across the land? I assure the noble Viscount that the LBRO fulfils Hampton’s clear recommendation for the creation of an executive consumer and trading standards agency. The body is smaller than he envisaged, but it has a rather wider scope, so we very much picked up that recommendation.

In my opening speech, I mentioned that the draft of the Bill, published in May, was accompanied by the first of the new impact assessments, trying to set an example that we trust will be followed everywhere. In our department, we will try to bring as much pressure to bear on all other departments to do the same. In concluding this debate, I think that noble Lords may be interested to hear of the benefits that we set out in that first impact assessment. We anticipate benefits to business of up to £100 million a year, net benefits to regulators and central government of £50 million a year, and the net benefit to local authorities of up to £5 million a year. That is a real gain to our society, whichever way you look at it. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Grand Committee.

Proscribed Organisations Appeal Commission (Procedure) (Amendment) Rules 2007

7.23 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath) rose to move, That the draft rules laid before the House on 9 October be approved.



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The noble Lord said: My Lords, I will speak also to the Special Immigration Appeals Commission (Procedure) (Amendment No. 2) Rules 2007. The Special Immigration Appeals Commission, known as SIAC, and the Proscribed Organisations Appeal Commission, POAC, are two separate bodies, but there are broad similarities between their procedures. The two statutory instruments were approved in another place on 19 November. The amendments are necessary for us to implement an EU directive that comes into force on 1 December 2007.

SIAC is a superior court of record. It was created by the Special Immigration Appeals Commission Act 1997 to deal with appeals against decisions made by the Home Secretary to deport or exclude people from the UK on national security grounds, or for other public interest reasons. It also hears appeals against decisions to deprive persons of citizenship status. SIAC is essential to the counterterrorism remit, as it provides judicial oversight of executive decisions.

In most SIAC cases, parts of the evidence cannot be made public due to considerations of national security or public interest. In such cases, this evidence is designated as “closed material”. Section 6 of the SIAC Act 1997 allows for a special advocate to be appointed by the Attorney-General to represent the interests of the appellant in closed sessions.

The rules under consideration today amend the Special Immigration Appeals Commission (Procedure) Rules 2003, which prescribe the procedure to be followed for appeals to SIAC. The amendments are threefold. Two of them bring the SIAC rules into line with an EU asylum procedures directive, Council directive 2005/85/EC. The third provides a minor clarification. The EU asylum procedures directive that gives rise to two of the amendments is a key element of European asylum policy. It aims towards common standards for fair and efficient asylum procedures in member states, and consistency across their legal frameworks.

That mandatory directive has an implementation deadline of 1 December 2007. It lays down basic standards on procedures for assessing asylum applications, and for granting and withdrawing refugee status. The majority of the provisions concern the initial stage of decision-making rather than appeals, and so fall within the remit of the Border and Immigration Agency of the Home Office. UK practice is currently in line with many of the provisions, but the Border and Immigration Agency is taking forward a number of amendments to its Immigration Rules where required.

One article in the directive, Article 10, requires two amendments to the SIAC rules. Both amendments relate to procedures that SIAC already carries out in practice, but which were not specified explicitly in the procedure rules. Those amendments achieve the consistency across legal frameworks towards which EU asylum policy aims. Article 10(2) of the directive specifies that three guarantees for asylum applicants—set out in Article 10(1)—pertain to the appeals process as well as to the initial application process. First, asylum applicants shall be provided with the services of an interpreter for submitting their case, where necessary. Secondly, applicants shall not

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be denied the opportunity to communicate with the United Nations High Commissioner for Refugees. Thirdly, applicants shall be given notice of the decision in reasonable time.

With regard to the first of those guarantees, interpretation is provided for SIAC cases but it is not explicitly specified in the rules. The provision of interpreters within the courts is clearly a key element of access to justice. We have therefore inserted a new rule setting out the existing SIAC procedure, whereby the appellant may be provided with an interpreter for giving evidence in his appeal, and in other circumstances where SIAC considers it necessary. The interpreter is paid from public funds. SIAC’s rule-making powers do not extend to making such a provision, thus other legislative regulations implementing the directive will achieve that.

The second guarantee does not require an amendment. SIAC does not prevent the appellant communicating with the UNHCR, and the rules state that the UNHCR may be a party to the proceedings.

In respect of the third of the guarantees, the rules include an amendment to make it clear, using the language of the directive, that notice of the decision must be given to the applicant in a reasonable time. The third amendment clarifies the time limit to apply for permission to appeal from SIAC to a further appellate court. The current rule, as amended by the Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007, is unclear because it could be read in a way that implies that the time limit is not necessarily the same for each party.

However, it has always been the policy intention that both parties would have the same time limit to apply for permission to appeal to a further appellate court—10 days from receipt of the final determination on the appeal. The rule amendment adds clarity by making a clear distinction between the provisional and final determinations on the appeal and by expressing the time limit more fully. The inconsistency with the current rule is a very minor one that has not caused any practical problems within SIAC. However, as two rule amendments are required by the EU directive, it seems an opportune moment to make this clarifying amendment.

The final amendment, which I have just outlined, is replicated in the amendments to the POAC rules. The Proscribed Organisations Appeal Commission was created by Section 5 of the Terrorism Act 2000 to deal with appeals against refusals by the Home Secretary to de-proscribe organisations which he believes are concerned with terrorism. Proscribed organisations are listed in Schedule 2 to the Act. The Proscribed Organisations Appeal Commission (Procedure) Rules 2007 govern the procedure for appeals before POAC. POAC and SIAC have some similar procedures because the special advocate process used within SIAC is also applicable to POAC. The amendment clarifying the time limit to apply to a further appellate court ensures consistency between the two commissions’ rules in areas where their procedures are similar.



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My department has consulted stakeholders representing the spectrum of those involved with and who have an interest in SIAC cases and the POAC remit. We also wrote to the Home Office, the BIA, special advocates who represent appellants in closed proceedings before SIAC, the Special Advocates Support Office, the Treasury Solicitor, the Foreign and Commonwealth Office, the security services, the Law Society, the Bar Council and the chairmen of both commissions. Through such stakeholder interaction, we have obtained support for these amendments from our key stakeholders.

In summary, the majority of these amendments arise directly from an EU directive that is a significant step towards a common European asylum policy. As outlined, these are minor amendments, but they are significant because they contribute towards ensuring that SIAC’s legal framework is consistent with that envisaged by the EU. I commend these draft statutory instruments to the House. I beg to move.

Moved, That the draft rules laid before the House on 9 October be approved. 27th Report from the Statutory Instruments Committee, Session 2006-07.—(Lord Hunt of Kings Heath.)

Lord Henley: My Lords, I congratulate the Minister on managing in this packed House to devote eight minutes to such minor sets of rules and spelling out to the packed House exactly what was in them. I do not intend to spend much time on them because now is not the time to discuss either of the parent Acts behind them; I refer of course to the Terrorism Act 2000 and the Act behind the SIAC procedure amendment rules. The Minister made it clear that these were designed for clarification and to meet some European Union concerns.

I have no particular concerns to put before the Minister other than to query to some extent some of the language used in both Explanatory Memorandums and echoed by the Minister himself. Yet again we were told that stakeholders had been consulted. Now that we have moved on and his former boss, Mr Blair, is no longer Prime Minister, does he think that we could now drop the word “stakeholders” and find something slightly more elegant? Secondly, the Minister talked about a number of the stakeholders consulted representing a spectrum of those involved. I would love to know what a spectrum means on this occasion. Does he mean simply that he consulted all those who had an interest? If so, it might have been slightly better if that is what he said in his own words and in the Explanatory Memorandum.

As I said, I do not have anything to add at this stage, and I thank the Minister for his very detailed explanation of exactly what was in two fairly minor and brief sets of rules, which we have the privilege of debating at this time of night.

Lord Thomas of Gresford: My Lords, I echo the noble Lord, Lord Henley, in his irritation at the use of the word “stakeholders”. I was once so irritated by it that I looked in the Oxford large dictionary to find out who used the word first. I discovered that it was my then noble friend, the noble Lord, Lord

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Dahrendorf. I think I indicated on a previous occasion that when we take over the Benches opposite we shall shout, “It is time for the stakeholders now”. I hope that we can then remove the word from the vocabulary altogether.

The usual suspects who would object to anything being done on the basis of a European directive are not in their places today. I see the Minister looking around to see where they have gone. I have very little to say about these trivial amendments. I do, however, have something to say about the basic special advocacy system, because it is a very opportune moment for the Minister to give me the Government’s response to the case of the Secretary of State for the Home Department v MB, which was determined on 31 October—a bare three or four weeks ago—by the Judicial Committee of this House. In that case, the noble and learned Lord, Lord Bingham, said:

The noble and learned Lord, Lord Bingham, finds it impossible to conceive of any fairness where the special advocate system is used.

I wish that the Judicial Committee had simply said that the special advocate system was simply to be struck out in any event, but it has not gone that far. The result of its judgment is that individual cases will come forward time and again, all the way up the House of Lords, saying that in their case the use of the special advocate system has led to injustice. I mention this because it is such a recent decision, and so far we have not had any reaction from the Government save for a sigh of relief from the Home Secretary that she had not suffered a worse defeat.

This is an opportunity for the Minister speaking on behalf of the Ministry of Justice to give us his reaction on behalf of the Government to the condemnation by the Judicial Committee of this House of the system which we on these Benches have opposed on principle from its very inception. We have opposed it because it is unjust and cannot continue. I wait to hear the Minister’s response.



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Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Thomas, referred to the recent case. In the control order cases before the Law Lords, they affirm that the procedure of reviewing control orders may in some cases lead to unfairness, but not that it necessarily would or had. They agreed that the judge reviewing the control order would have to identify a significant injustice to the controlled person for it to be arguable that there had been a breach. A Law Lord stated that it is highly likely that the special advocate procedure will safeguard the suspect against significant injustice. Clearly, these matters are still being considered and I do not expect that the noble Lord expects me to give a definitive view on those points tonight.

In general, the whole construct of the special advocate system, particularly in relation to SIAC, is to provide a judicial process to test the evidence against the appellant while preserving the source of that evidence from risk of compromise. I fully accept that there are very basic arguments about the broad principles involved. It is a difficult judgment to get the balance right. But the Government have to assess the threats to this country and have procedures in place. We are of the view that the special advocate procedure is probably the best way to achieve that balance. I understand that there will always be arguments about it.

I apologise to the House for using the wretched word “stakeholder”. If my boss knew I was using it, he also would give me the ticking-off I received from both noble Lords. He detests that word, and I do not like it either. If I had been more astute I would have not used it tonight: I have been rightfully brought to task for it. It means that we consulted the most relevant bodies with a concern in these matters. They basically said that they thought the changes being made were sensible. On that basis, I hope that I will be forgiven.


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