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The difficulty with any “reverse burden of proof” provision is that it is an inroad into the presumption of innocence enshrined in Article 6.2 of the convention. Section 40 of the 1974 Act was challenged in a prosecution conducted by the HSE in 2002 against a plant hire operator, David Janway Davies, for breach of Section 3(1) of the 1974 Act. The Court of Appeal ruled against Janway Davies, holding that the reverse legal burden of proof contained in Section 40 was compatible with the convention.

The court's approach was to examine whether a fair balance had been struck between the fundamental right of the individual and the general interests of the community, it being for the state to justify an inroad into the presumption of innocence,

On the basis of this and other case law, the Government have looked carefully at the compatibility with human rights legislation. We consider that the proposals in the Bill, including the widened scope for custodial sentence, are reasonable and proportionate, and that Section 40 continues to represent a fair balance between the rights of the individual to a fair trial and the protection of life and limb from dangerous work practices. I should stress that, where Section 40 has an impact, there is first of all still an onus on the prosecution to show that there is a prima facie case, and the prosecutor would do so by referring to the reasonably practicable steps that an individual could have taken.

My noble friend Lord Berkeley referred to the corporate manslaughter legislation. This concerns proceedings against corporations; it cannot be used against individuals. He also asked whether all industries were treated equally. They are, but I should point out that the maritime industry is covered by the Maritime and Coastguard Agency. He also referred to workplace transport, an issue about which he feels passionately. He is right to note that the police lead on the enforcement of road traffic legislation involving work-related road traffic accidents, for example where a sales rep has an accident while travelling between locations. However, the HSE will become involved in line with the work-related deaths protocol if the accident relates to a roadside work-related activity, for example construction. The HSE may also assist the police, and investigate, if wider issues arise from the management of work-related road safety.

The noble Earl asked whether this was a hybrid Bill. The short answer to that is no. In the time available I shall not expand on that, but I am happy to write to him about it. The noble Lord, Lord Taylor, talked about deregulation. The Bill is not a deregulatory measure. However, the HSE has a better regulation framework, including reducing administrative burdens through reducing forms, providing sample risk assessments and bringing together sets of regulations, for example on construction. He also referred to myths. That is an

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important point because many of the stories recorded in the press, which are accepted as true, are no more than myths. The HSE has a very good “myth of the month” programme, which seeks to rebut these stories. Sometimes a regulator may be overexuberant and sometimes people hide behind the label of health and safety because they do not want to do something and it is easy to use it as an excuse. However, it is important that the wider health and safety community continues to rebut those myths because they cut away at what we need to do, which is to change hearts and minds about the importance of health and safety.

The noble Lord, Lord Taylor, also mentioned financial penalties. If a company is prosecuted, it will pay the fine. If an individual is prosecuted, that individual could be fined. The noble Lord, Lord Addington, asked about interventions. This depends on the circumstances. However, he raises important issues of governance. These are not prescribed by legislation; this is about directors showing leadership on health and safety matters. The noble Lord said that people recognise health and safety only when it affects them directly. That is part of the challenge we need to take up to ensure that there is wider acceptance that health and safety legislation is a fundamental part of a civilised society. The 1974 Act has done much to help achieve that, but it is incumbent on us all to continue to send out that message.

The Bill proposes a modest change to the Health and Safety at Work etc. Act 1974 and the Health and Safety at Work (Northern Ireland) Order 1978, both of which are widely accepted as huge steps forward and path-breaking measures not just in this country but in many others. As my noble friend said, this has the support of many stakeholders, including the Health and Safety Executive, the Health and Safety Executive for Northern Ireland, trade unions, industry, professional bodies and the public. The Government welcome the Bill. I again thank my noble friend and others for their hard work in bringing it this far.

11.08 am

Lord Grocott: My Lords, I said in my opening speech, and meant it, that it was a pleasure for me to introduce the Bill in this House. That pleasure was reinforced by the contributions that we have heard. It was particularly reinforced by the fact that my noble friend on the Front Bench answered most of the difficult questions. This is a terrific arrangement: I introduce the Bill, and he answers the tricky questions.

I agree with most of the comments made. It was reassuring to receive support for the Bill’s principles from everyone who contributed. I know where the noble Earl, Lord Mar and Kellie, and my noble friend Lord Berkeley are coming from, as they share my enthusiasm for the rail industry. I could not agree more with my noble friend’s comment that the railways get a very unfair press, particularly in relation to road transport. I declare an interest, in coming from at least three generations of railwaymen. Frustration is felt by employees in the railway industry, the vast majority of whom work phenomenally hard, including those whose front-line job is concerned with health and safety, those in signalling departments and others. It is grossly

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unfair to suggest that they are doing anything other than an extremely good job, and the overall record of safety on the railway proves that.

I found myself wanting to say, “Hear, hear”, to the noble Lord, Lord Addington. He pleaded—which is how I felt two or three weeks ago when I picked this up—the absolute need for clarity in the legislative work that we do. I hope that, in the expositions that my noble friend and I have given, we have clarified some of the technicalities in the Bill.

I had a sense that I might have one or two things in common with the noble Lord, Lord Taylor of Holbeach; I had not realised that parliamentary failure was one of them. I greatly enjoyed his contribution. He made the crucial point, which was valuable to hear from him as a businessman, that good businesses have absolutely nothing to fear from this legislation. It is the bad businesses that have things to worry about. I emphatically agree that, at the end of the day, we are looking for the right kind of culture, applied with that great skill of common sense. The most valued characteristic of all legislators is a good dose of common sense. You cannot get a degree in it but, my word, it is useful to have when we try to put through legislation. I am grateful for the support that I have received.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Immigration (Discharged Gurkhas) Bill [HL]

11.12 am

Lord Lee of Trafford: My Lords, I beg to move that this Bill be now read a second time.

I am most appreciative of the opportunity to introduce this Bill today. In essence, the purpose of the Bill is to amend the Immigration Rules in connection with the requirements for indefinite leave to enter and remain in the United Kingdom as a Gurkha discharged from the British Army.

In 2004, the Government changed the Immigration Rules to allow Gurkhas with at least four years of service to remain in the UK after their discharge from the British Army. Prior to that change in the rules, Gurkhas could not be granted indefinite leave to remain after their discharge. However, the new rules apply only to Gurkhas discharged from the British Army on or after 1 July 1997. The Bill would enable Gurkhas who left service prior to 1997 to be granted indefinite leave to enter and remain in the United Kingdom.

For almost 200 years, Nepalese Gurkha soldiers have been part of the British Army, although the Gurkha brigade itself was formed only following the partition of India in 1947. More than 200,000 Gurkhas fought in the Allied cause in two world wars and 43,000 gave their lives. They have been deployed over the years in Malaysia, Borneo, the Falklands, the first Gulf War, Sierra Leone, Kosovo, Bosnia and currently in Afghanistan. With their motto, “Better to die than be a coward”, they have won 26 Victoria Crosses. Currently, there are 3,400 Gurkhas in the United Kingdom forces, 700 of whom are at present in Brunei. Given that record of service to our country, their bravery, dedication and unswerving loyalty, they ask

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only two things: a decent, fair pension and a right of settlement in the United Kingdom, which is the purpose of the Bill. Surely those are not unreasonable requests.

The Bill marks yet another attempt to get the Government to do the right thing. Over the years in both Houses, politicians of all political persuasions have pressed the Gurkhas’ cause, with Questions and Early Day Motions. A number of parliamentarians have served with them. In your Lordships’ House today, we hope to hear from the noble Viscount, Lord Slim, who served with the Gurkhas and who has a fine family history of service with the Gurkhas, the noble Lord, Lord Glentoran, who also served with the Gurkhas, and my noble friend Lord Burnett. I believe that the father of the noble Lord, Lord Bilimoria, served with the Gurkhas; no doubt many Gurkhas are customers of his at present, as am I. I hope that those noble Lords will all speak proudly in today’s debate. We remember with affection our former colleague Richard Holme, Lord Holme of Cheltenham, who served as a lieutenant in the 10th Gurkha Rifles in Malaya in the 1950s. He would surely have participated today had he lived.

My fellow Liberal Democrat, Bob Russell, introduced a Ten Minute Rule Bill in the other place as recently as May, which was designed to draw attention to the cause that I am pursuing today. He concluded as follows:

Philip Johnston, writing in the Daily Telegraph, said:

I turn now to the right of settlement. Prior to 1997, the Gurkhas had no right of settlement; each application was treated on its merits on a case-by-case basis. Following the handover of Hong Kong to China on 1 July 1997, the Gurkhas then based in Hong Kong were redeployed to the United Kingdom, apart from those who were deployed and based in Brunei. In 2004, it was announced that those Gurkhas leaving the Armed Forces after 1997 would have a right of settlement in the United Kingdom. However, there was a window between October 2004 and October 2006 when any Gurkha could apply for settlement. During that window, 3,000 were granted settlement. The Government’s logic in the 1997 demarcation, as I understand it—no doubt we will hear from the Minister a little bit later—is apparently that, post-1997, Gurkhas had a real tie to Britain, whereas before 1997 they did not, despite all their service to this country over so many years.

The current position for them is no right of settlement but applications on a case-by-case basis, with applicants having to fulfil one of four criteria: three years’ physical service in the United Kingdom; strong medical grounds of a chronic or long-term health condition that cannot

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be treated in Nepal; satisfactory evidence that one or more of the applicant’s children is currently receiving full-time education in the United Kingdom; or most of the applicant’s living, close family resident in the United Kingdom.

It is estimated by the British Gurkha welfare association—I spoke to its chairman at 9 am to check my figures and assumptions—that 25,000 Gurkhas might have retired before 1997 who would be eligible for settlement in the United Kingdom were the Bill to be approved, of whom perhaps 10,000 would wish to come. Given the overall number who settle in our country each year from all over the globe, that would hardly appear a significant figure. They could easily be absorbed and many would bring skills to this country that we clearly have considerable need of. Today the Government have yet another opportunity to right a wrong—to do the right thing. I pray for a positive response.

Moved, That the Bill be now read a second time.—(Lord Lee of Trafford.)

11.20 am

Lord Glentoran: My Lords, I speak in a personal capacity in support of the Bill and congratulate the noble Lord, Lord Lee of Trafford, on bringing it to the House. As he said, I have had some experience of working and serving with those wonderful people. I picked up the Bill only a few days ago but was amazed at some of the figures that I found and that he just told us about.

The situation is an insult to the Gurkhas who are unable to come to this country voluntarily and straightforwardly—those who retired before 1997. I see no logic in it whatever. In fact, there is no logic in it. It is just a straight insult to a group of probably the most loyal, worthy and brave people who have ever served this nation. They have many VCs and, as the noble Lord said, have served for over 200 years all over the world; indeed, now they are serving in Afghanistan. They have not given us up, so why are we giving them up in this rather unpleasant and unnecessary way?

When we look at the numbers concerned, the situation is extraordinary. As a percentage of total immigration figures or anything you like—choose any number from the national budget—what is the cost of accommodating 10,000 Gurkha families? Because they retired before 1997, it has to be a diminishing figure. That is the way life is; we get old and die and cost nothing when we are dead, pretty well. I simply do not follow the logic of the Government sticking with their position. I strongly support the amendments that the Bill will achieve to the 2004 provisions.

11.23 am

Viscount Slim: My Lords, I thank the noble Lord, Lord Lee of Trafford, for bringing the matter to your Lordships’ attention. As he said, I had the privilege and honour of serving with Gurkhas, as did my father. As a small boy I was brought up as a Gurkha, really, until I was commissioned into the family regiment.

We have to make certain that the Gurkhas in the British Army are kept within the military covenant. I said in a defence debate in your Lordships’ House

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some time ago that I felt that the covenant had been broken. The Minister—the noble Baroness, Lady Taylor—refuted that, but I have felt for some time, although it might be getting a little better now, that all parliamentarians had rather ignored the military covenant and that it had been broken. I have yet to be satisfied that I was wrong. The Gurkhas’ welfare within the covenant has to be looked after; Gurkhas have to be treated like any other soldiers in the British Army. Other nuances have to be noted in the context of Gurkhas within the British Army. Their pensions still have to be looked at once more and resolved.

As the noble Lord, Lord Lee of Trafford, said, the Government’s view is that Gurkhas in the old days never looked at living in Great Britain. They simply were not allowed to—it was not even countenanced—so that is a remarkably weak argument on the arbitrary date.

Governments can change rulings and law. The right honourable Mr Tony Blair, when he was Prime Minister, bucked and changed the law on proper remuneration for those who had been Far East prisoners of war—some 10,000, rather like the number that we are talking about today. I cannot believe that the cost of that would be much different from the cost anticipated now. I always view with slight concern figures put out by the Government about costs these days. A pinch of salt is sometimes required to approach them; they seem maximised unnecessarily.

People underestimate the value of the Gurkha as a citizen—he has much to offer. To start with, he is a man of integrity, compared with the immigrants whom we have allowed in from all sorts of places off the streets—the terrorists, the criminals and the mafia groups that have emerged in our country. We seem to like to have them, but we would be much happier if we had some loyal Gurkhas among us. Their skills are many. They are good farmers in harsh conditions. They are good at transportation. They are engineers. They are also entrepreneurs; some good little Gurkha businesses have been set up in this country, which are doing no harm at all—as opposed to some of the other people who have been let into our country.

We should have a good look at the issue. I hope that we will no longer hear from the Minister’s department that we cannot accept the Gurkha because he is not sufficiently British-inclined or knowledgeable about Britain. I consider that a complete insult. If a Gurkha is prepared to die for the people of this nation, he must know quite a lot about them. That argument is a bad move on the part of the immigration department. I hope that the noble Lord, Lord Lee of Trafford, and others might consider the odd amendment in Committee, because this case may have the backing of the whole of your Lordships’ House and I believe that it would support such amendments.

I hope that the Minister will not think that everything that I have said is bad news for him. Great strides have been made by the Government in the overall move to bring the Gurkha regiments of our Army into and within the military covenant. There have been great advances for Gurkhas, but this has not yet ended. I hope that the Minister might even go back and think again, so that perhaps he will have a different story when we reach Committee.

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11.30 am

Lord Sheikh: My Lords, I begin by thanking the noble Lord, Lord Lee of Trafford, for introducing the Bill. The House needs to treat this Bill with an appropriate level of respect, for it raises an important subject which warrants very careful consideration. There is strong public sympathy for the first-class service offered by Gurkha soldiers to the causes for which we have fought in military conflicts for nearly 200 years. I have always admired the Gurkhas; I have read about them and met them.

The Gurkhas have discharged highly praiseworthy service in the British Army since 1815 and are the only aliens to have been allowed to serve in our Army. As Nepal has never been a part of the Commonwealth, the Gurkhas’ status has been unique. One measure of their contribution to our military cause is the number of Victoria Crosses they have won in that period. Gurkhas represent one of only three categories of non-United Kingdom nationals who have performed regular service in the British Army alongside citizens of the Commonwealth and the Republic of Ireland. Their service to our Armed Forces commenced after the conclusion of the Anglo-Nepali war when, under the terms of the peace settlement, large numbers of Gurkhas were permitted to volunteer for service in the British East India Company’s army. The first Gurkha regiments were created from these volunteers.

At the outbreak of the First World War, the whole of the Nepalese army was made available to the British Crown and around 1,000 Gurkhas enlisted in a number of locations. Some 40 battalions of Gurkhas served during the Second World War, amounting to around 112,000 men. Over the course of this 200-year history, around 300,000 Gurkhas have fought alongside British troops in military conflicts and earned the widest possible respect and honour from the British people. Nearly 45,000 have given their lives or been wounded in the discharge of these efforts. All of that gives a boost to their claim for settlement or citizenship in this country.

Before 1947, Gurkha soldiers were enlisted only into the British Indian Army. In that year, a tripartite agreement between the United Kingdom, India and Nepal established the raw principles under which Gurkhas would serve. Under that agreement Gurkhas were recruited as Nepalese citizens, served as Nepalese citizens, and, at the completion of their duties, resettled as Nepalese citizens. The spirit of their service is demonstrated in their motto: “Better to die than live a coward”. I have no hesitation in saluting their tremendous dedication and commitment to providing some of the best soldiers to have existed on the planet. There remains stiff competition for admission to the Brigade of Gurkhas, with around 23,000 applications for the 230 places available each year.

Before the transfer of the headquarters of the Brigade of Gurkhas from Hong Kong to the United Kingdom on 1 July 1997, very few Gurkhas were present in this country. Before that, Gurkhas had no right to settle in the United Kingdom and it was assumed that they would retire in Nepal with a Gurkha pension. From 25 October 2004, the Immigration Rules were changed, and the Gurkhas who retired on or after 1 July 1997

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were granted the right to apply to settle in the United Kingdom. That change meant that those who served post-1997 would be able upon discharge to settle in the United Kingdom provided they had completed four years of service. They would also be able to obtain citizenship after a further year. Those who do not meet those conditions can settle at the discretion of the Secretary of State for Home Affairs.

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