Previous Section Back to Table of Contents Lords Hansard Home Page

Article 5 of the order provides consequential amendments to, and repeals and revocations of, primary and secondary legislation, and transitional and saving provisions. These are set out in full in the schedules and include the revocation of Section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which inserted Sections 103A to E into the Nationality, Immigration and Asylum Act 2002. Those sections of the Nationality, Immigration and Asylum Act 2002 established the higher court review and reconsideration process following an appeal to the Asylum and Immigration Tribunal.

The schedules also provide for the revocation of Part 2 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which established the higher court filter review and reconsideration process. This process enabled a disappointed party, following an appeal to the Asylum and Immigration Tribunal, to apply to the tribunal for reconsideration of its decision. If the tribunal decided not to reconsider its decision, the party could then go to the higher courts to seek an order for reconsideration. This will be replaced by the onward appeals process provided by Section 11 of the TCE Act, whereby initial appeals will be dealt with by the first-tier tribunal and the reconsideration process will be replaced by onward appeals to the upper tribunal. Those wishing to appeal to the upper tribunal will be required to seek permission to appeal from the first-tier tribunal in the first instance.

2 Dec 2009 : Column GC17

Where the first-tier tribunal refuses to grant permission, a party may then apply for permission directly to the upper tribunal. We will, however, maintain the current bar on onward appeals against procedural, ancillary, preliminary or interlocutory decisions and decisions on bail applications. We will be bringing forward an excluded decisions order under Section 11(6) of the TCE Act for this purpose.

The Government are committed to ongoing transformation of our tribunals, placing the user at the heart of the service. The unified system will have greater flexibility in absorbing new work and responding to fluctuations. The order before the Committee today is another step in achieving this process. I commend the draft statutory instruments to the Committee.

Lord Henley: My Lords, again I thank the noble Lord, Lord Tunnicliffe, for such a detailed explanation of these orders. I do not know whether he was using the same speech as was used in another place when these orders were taken-I am not even sure whether they have been taken in another place-but I noticed that he referred to us as "honourable Members" rather than "noble Lords". So it possibly was lifted from another place.

We have dealt with a number of these transfer of tribunal function orders over the past few months, some of which were controversial-the noble Lord will remember when we were dealing with war pensions-and some of which were negative orders, as the noble Lord pointed out. Are these the last of the transfer of function orders to be brought forward under powers created by the Tribunals, Courts and Enforcement Act 2007? In dealing with that point, given the difficulties of dealing with secondary legislation, would it not have been possible for these to have been brought together into one order on which we could have had one simple debate and got it over at once?

That point is underlined by the amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009. Again, would it not have been possible to get all these matters right at once, rather than bringing forward an amendment as early as this? I hope the Minister will give an assurance that we will be able to deal with these matters in a more felicitous manner in the future. A raft of orders going through in this manner is not the easiest of way of dealing with the issue and, to some extent, brings the process of secondary legislation into disrepute. Having said that, we welcome the range of tribunals-the gambling appeals tribunal, the claims management services tribunal, the information tribunal, the immigration services tribunal, and so on-that are moving over and we wish them well under the new system.

Lord Thomas of Gresford: I am grateful to the Minister for his statement. We have always supported the concept of the tribunals being unified into one body, and the division into a lower or first tier and an upper tier has been very acceptable. We welcome, in particular, the transfer of the Asylum and Immigration Tribunal into its own chamber of the first-tier tribunal. That is a very good step. One reason that we welcome it is that the previous tribunal had procedures which

2 Dec 2009 : Column GC18

favoured the Home Office over the applicant. I noted that the Minister said that the applicant-I think that he meant the applicant-was to be placed at the centre of the new tribunal procedures. I hope that that is right and that his rights are considered.

Having regard to the unsatisfactory nature of the procedural rules in the old system, we also welcome the fact that the procedural rules are now to be put in the hands of the Tribunal Procedure Committee. When the consultation paper, Immigration Appeals: Fair Decisions; Faster Justice, was published by the UK Border Agency in 2008, it asked for comments on the rule-making powers for the new chamber. As a result of representations made to it, the border agency decided that the Lord Chancellor would no longer make and amend the procedure rules but that the Tribunal Procedure Committee would have that job.

The Tribunal Procedure Committee has consulted on draft rules which it has promulgated, and the Immigration Law Practitioners' Association has responded in a document dated 23 November 2009. It raises certain very serious issues, and I should like to have a response one way or the other on some of them. It mentions reporting determinations, which I do not need to follow up on, but it also refers to evidence in the upper tribunal, the European Court of Justice and fast-track provisions. It makes some very worthy comments and I shall read the Government's response to its submission in due course.

However, ILPA also states that, whereas previously there was a case management review hearing, nothing in the draft rules that are now promulgated maintains that hearing. It is a hearing of great advantage in determining what issues the tribunal has to determine. There has been no consultation on abandoning case management review hearings. There is undoubtedly concern that, for many years, applicants and appellants have faced endemic and systemic obstacles in persuading the Home Office to disclose its case on the relevant issues with sufficient clarity and sufficiently in advance. There are a number of aspects to that, but basically the problem is that presenting officers are told that they can change the basis of the Secretary of State's decision, including raising new matters, without reference to the original decision-maker, so long as notice is given. That is to say that the applicant will receive reasons for the refusal of his application, but they can be changed by the Home Office when the matter goes on appeal.

The Home Office has said that, as a matter of policy, the "reasons for refusal" letter will not necessarily identify all matters that the Secretary of State for the home department proposes to raise at the hearing, and that new issues may well be raised much less than 48 hours before the hearing, including at the hearing itself. It is fundamental, and contrary to basic justice, that a person bringing an appeal against a decision based on particular reasons should know, and know plenty of time in advance, if those reasons are to be fiddled about with and changed to the advantage of the Home Office. If that system has become, as ILPA says, the practice in the old tribunal, I hope that when this comes before the first-tier or upper tribunals we will not have a similar system in operation, whereby reasons can be changed at any moment, even up to the

2 Dec 2009 : Column GC19

hearing itself. That is one aspect that I would like some response to, not necessarily now but certainly in due course. I want to hear from the Home Office why it has had this practice in the past and whether it will persist with it in the future.

The other matter about which ILPA has considerable concern is that the draft practice directions that have been put forward do not include the provisions that exist with respect to children and vulnerable adult witnesses. Children involved in asylum appeals are likely to have experienced serious physical and psychological harm and ILPA considers that their treatment should be addressed by a further practice statement in the immigration and asylum chamber of both tribunals. This matter is the subject of a Private Member's Bill coming before your Lordships shortly, dealing with the United Nations Convention on the Rights of the Child. It is very important when we are dealing with practice rules for a new tribunal and for a new procedure that the articles of the United Nations Convention on the Rights of the Child should be followed, so that, in all decisions affecting children, whether directly or indirectly, the tribunal must ensure that its procedures satisfy the highest standards in relation to children's rights. We all know of the detention of children that is taking place in the Yarl's Wood detention centre in asylum cases; that is highly unsatisfactory. Concern for children should apply to all judicial administrative hearings.

The new procedure rules, when they are produced, should be flexible in order to give positive effect to the rights of children in terms of their immediate and longer term best interests, principles of non-discrimination and effective participation rights. Such practice directions exist in the Family Division of the High Court and in the criminal courts, and it is essential that they apply in asylum and immigration cases. I hope the Minister will be able to give me some satisfaction, either now or at some later stage, that these principles will be followed in the practice rules put forward by the tribunal. Having said that, we do not object to these orders and will not oppose them.

Lord Tunnicliffe: My Lords, I apologise for using an inappropriate form of address. I shall scrutinise my speeches with even more care in the future to make sure that does not happen. I had the same thought as the noble Lord, Lord Henley-can there be any more of these orders? We are considering how best to transfer the remaining tribunals, many of which have few or no cases, and will do so when the benefits for users and the Tribunals Service can be gained. We have one further appeal to consider under the Transport Tribunal, which was not transferred, and I will consider when to bring this forward. Are they the last? I think the answer is that they are almost the last. I share the noble Lord's reaction.

Would it not have been possible to have put all the transfers into one order? A large number of tribunals have been transferred. Perhaps it is slightly unfair to call it a messy system, but this Act addressed a very diverse system, and it has been appropriate to do this in phases, with more than one order, to ensure that the system could properly support the transfers.



2 Dec 2009 : Column GC20

The points raised by the noble Lord, Lord Thomas, seem to be generally welcoming. I did say the systems were designed to bring the applicant to the centre of the system. As he pointed out, we responded to consultation and transferred the rule-making process from the Lord Chancellor to the Procedure Committee. I think the noble Lord was responding, in a sense, to a Procedure Committee consultation of 21 November, and I acknowledge the importance of the points he made. Equally, given their importance, it would be much more satisfactory if I were to respond to them in writing, which would give officials and Ministers time to consider his points in some depth.

Motion agreed.

Transfer of Tribunal Functions Order 2009

23rd Report Joint Committee on Statutory Instruments

Considered in Grand Committee

5.03 pm

Moved By Lord Tunnicliffe

Relevant Document:23rd Report, Session 2008-09, from the Joint Committee on Statutory Instruments.

Motion agreed.

Amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009

23rd Report Joint Committee on Statutory Instruments

Considered in Grand Committee

Moved By Lord Tunnicliffe

Relevant Document:23rd Report, Session 2009-09, from the Joint Committee on Statutory Instruments.

Motion agreed.

Census (England and Wales) Order 2009

23rd Report Joint Committee on Statutory Instruments
29th Merits Committee Report

Considered in Grand Committee

5.04 pm

Moved By Baroness Crawley

Relevant Documents:23rd Report, Session 2008-09, from the Joint Committee on Statutory Instruments and 29th Report, Session 2008-9, from the Merits Committee.

Baroness Crawley: My Lords, this draft Order in Council gives effect to the proposals of the United Kingdom Statistics Authority for the ONS-the Office for National Statistics-to conduct a census throughout

2 Dec 2009 : Column GC21

England and Wales in 2011. These proposals were set out in the Government's White Paper, Helping to Shape Tomorrow, published in December 2008.

The census is the most important source of population statistics, and is the only source of statistics for both small areas and minority population groups. For over 200 years it has provided the underlying information which successive Governments have used to devise policies, take decisions and deliver services.

Billions of pounds of public funding and resources are allocated to local and health authorities each year using census-based information.

Since the 2001 census, a new independent body that reports directly to Parliament, the UK Statistics Authority, has been created. The ONS, the executive office of the authority, will lead on the census in 2011. I can therefore present the census order today confident that its content has been produced not by government but by the ONS, following extensive consultation with a wide range of stakeholders and with rigorous question testing. The independence of the census is essential if we are to build public trust in official statistics.

I will now take you through the detail briefly. Under the Census Act 1920, an Order in Council is necessary to prescribe the date of the census, the people to be counted, the people responsible for making a census return, and the information to be given in the census returns.

The date of the census will be 27 March 2011. Everyone will be recorded at the place where they are usually resident. Household members who are temporarily absent on census night also need to be counted. Some additional information will be collected on household visitors, which is essential if the ONS is to ensure that visitors are properly counted at their usual residence. The person responsible for making a census return is to be the householder or joint householder, but any individual aged 16 or over may make a separate individual return. The information to be given in the census returns is covered by Article 6 of the order and is set out in Schedules 2 and 3. Regulations, to be laid before the House in spring 2010, will set out the detailed content of the census and will contain copies of the various questionnaires.

On the information to be given in the returns, the ONS has carried out extensive consultations with central and local government, including members of all-party parliamentary groups, with community groups, with businesses, with academia, with the third sector and, most importantly, with the general public.

The ONS has also carried out in-depth question testing between 2003 and 2009, building on the valuable experiences and the lessons learnt from previous censuses. This is to ensure that the proposed questions in the 2011 census are justified, both in terms of the need for the information itself and of their acceptability to the public.

Under the terms of the Census Act 1920, some items-those in italics in the draft order-may only be included in the census if they are approved by an affirmative resolution. It is these that we are debating today. Only a few are new to the census, and I will now deal with these specifically.



2 Dec 2009 : Column GC22

First, people born outside the UK will be asked about their date of entry into the country and, for those who arrived in the past year, the length of their intended stay. There is an increasing need for more accurate and reliable statistics on migration in general, particularly on short-term migration. The census will therefore provide information on shorter-term migrants and temporary foreign workers, and help to give a better understanding of their needs and their impact on local labour markets and demand for local services.

Secondly, people will be asked to state the country of any passport that they hold. Government departments and the European Union require statistical data on the citizenship of the population. The question asks about passports rather than about citizenship. Asking directly about a person's citizenship confuses respondents, who may mistake the question for one of national identity. People give much more consistent answers to a question about passports, with the result being easier to use to produce the necessary citizenship-related information.

Thirdly, people will be asked to register another address where they actually spend time. Such information will be particularly useful to local authorities which need to know the number of people who stay within their area and use local services during the week but who have a usual residence elsewhere.

Fourthly, people will record their national identity in addition to their ethnicity. Noble Lords will be aware of the amendment that was voted down in the other place to add a tick-box for "Cornish" in the national identity question.

Fifthly, people will be asked about their main language, allowing central and local government better to target language support and resources to those sections of society unable properly to access public services due to language barriers.

People whose main language is not English will be asked to state their proficiency in speaking English, with an additional, similar question about proficiency in Welsh in Wales. This will give a greater insight into the need for language training and community work to combat any possible discrimination and social disadvantage suffered by people whose language skills could be improved.

All other items requiring affirmative resolution cover topics that were included in the 2001 census, but I shall refer specifically to two where there have been some slight changes to the information to be collected. The question asking people to assess their general health during the past 12 months has now been expanded to a five-point scale ranging from "very good" to "very bad". This information is for the planning of health policy and the provision of services, particularly for the elderly. The question on qualifications has a new tick-box to indicate any foreign qualifications held.

Other questions deserve mention either because the proposed wording has been revised since the last census or because particular interest has been shown by noble Lords. Following the Civil Partnership Act 2004, the traditional census question on marital status has been expanded to include response categories for civil partnership status.



2 Dec 2009 : Column GC23

Noble Lords may be aware of lobbying campaigns by Kashmiri, Sikh and Cornish groups, for example, on the ethnicity question. It has not been possible to include a tick-box for every ethnic group category requested. Each request was compared against a detailed set of prioritisation measures before the final recommendation was made. This identified strongest need for additional response categories for "Gypsy and Irish Traveller" and "Arab", which have therefore been included for the 2011 census.

People can record their ethnicity in whichever way they choose by writing this in the write-in spaces provided. All such responses will be counted. In the case of Sikhs, there is the additional option of ticking the specific "Sikh" box in the religion question. The Government are satisfied that the census is compliant with national legislation on race relations and any international conventions on the protection of national minorities.

I shall refer briefly and specifically to the proposed question on religion. A number of noble Lords have made representations to the House during previous debates and directly to the ONS on the proposed question. In particular, concerns have been expressed that the question on religion is leading and overstates the extent of religion within the country. The proposed question measures an affiliation with a religion and not belief or practice. It provides information which can be used together with responses to the ethnicity question to monitor equality and discrimination by identifying minority ethnic subgroups that may otherwise be missed, particularly those originating from the Indian subcontinent, in terms of their religion.

As a result of concerns expressed, the ONS tested alternative questions on religion. The testing concluded that no single question on religion can be worded in such a way as to capture suitably information on religious belief or practice and to justify losing comparability with the 2001 census. There is a strong user requirement for comparability with the data from the 2001 census. The proposed question on religion therefore remains unchanged, and remains the only question in the census for which a response is voluntary.

There is a new question asking for the number of rooms designed for use as bedrooms. This will measure overcrowding and assist in the planning of housing investment and the addressing of social and economic need. There is also a new question asking about the type of fuel used for central heating, to provide data on basic housing standards and fuel poverty and deprivation.

Despite some strong user demand for an income question, testing by ONS revealed that including a question on one's income leads to a significant drop in response rates. There were also concerns over the quality and accuracy of the income data collected as part of the test.

There was a strong requirement for information on sexual identity in order to monitor equality. After investigation, the ONS recommends that a compulsory census is not a suitable means to collect information on sexual identity, again because of the quality of the resulting data, and including the question is likely to

2 Dec 2009 : Column GC24

reduce the overall response to the census. Although the ONS does not recommend that a question on income or sexual identity be asked on the census, it recognises the user demand for this information and is taking steps to provide some data through other sources.

I shall say a few words about security and confidentiality. The ONS has an excellent track record when it comes to security. Additional measures are being instigated and all internal and external threats that could affect the confidentiality, integrity and availability of census information are being carefully managed. The information will be protected by strong physical and electronic data security arrangements.


Next Section Back to Table of Contents Lords Hansard Home Page