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9 Nov 2011 : Column GC61

Grand Committee

Wednesday, 9 November 2011.

Arrangement of Business


3.45 pm

The Deputy Chairman of Committees (Lord Geddes): My Lords, before the first Motion is considered, I remind your Lordships that in the case of all the statutory instruments, the Motion before the Committee will be that the Committee do consider the statutory instrument in question. In the case of the first statutory instrument, further proceedings in the Chamber would need to be tabled for further action to ensue. In the case of the other statutory instruments, the Motion to approve the instrument will be moved in the Chamber in the usual way. As is normal on these occasions, I should also announce that if there is a Division in the House, the Committee will adjourn for 10 minutes.

Statement of Changes in Immigration Rules

40th Report from the Merits Committee

Motion to Consider

3.46 pm

Moved By Lord Rosser

Lord Rosser: First, I apologise for the absence of my noble friend Lord Hunt of Kings Heath. He is involved in the health bill and does not know how long the issue being discussed in the Chamber will last. It may well be brief, in which case he will be required in the Chamber.

The statement of changes to Immigration Rules has been the subject of consideration by the Merits of Statutory Instruments Committee. The Merits Committee, of which I am a former chairman, drew the changes to the special attention of your Lordships' House on the grounds that they give rise to issues of public policy likely to be of interest to the House. However, in its conclusion, the Committee also stressed the importance of providing appropriate levels of explanation and visibility for Parliament.

The statement of changes makes a number of amendments to the Immigration Rules, but the most significant is a provision that a person subject to immigration control who has failed to pay NHS charges of £1,000 or more in respect of NHS treatment charges should normally be refused permission to enter or remain in this country, or have their leave cancelled.

The Merits Committee states that the consultation on this issue produced important comments from stakeholders. It noted that the document on the United Kingdom Border Agency website, giving the results of

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the consultation, provided a relatively full and balanced account of the consultation outcome. However, the Committee went on to say that it was regrettable that this was not matched in the Explanatory Memorandum laid before Parliament, and that furthermore, given the importance of some of the issues raised in the consultation, Parliament could reasonably expect the United Kingdom Border Agency to have used the Explanatory Memorandum to provide greater reassurance that the policy will achieve its objectives.

It would be helpful if the Minister could explain why the Explanatory Memorandum did not match up to the level and standard of information on the consultation outcome provided on the website. Or is it his view that this is not the case and that, as far as Home Office Ministers are concerned, the Merits Committee is being unreasonable? That might well be the view of Home Office Ministers, bearing in mind this is by no means the first time that the Merits Committee has been less than impressed with the quality and completeness of information provided to them by the Home Office, and so far there appears to be an inability by Home Office Ministers to rectify the situation.

The Merits Committee was not alone in expressing its concerns on this point. The committee received a letter from the British Medical Association about the change in respect of outstanding NHS charges, which stated that it had submitted a detailed response to the Department of Health consultation and raised some general points by letter to the United Kingdom Border Agency in response to its parallel consultation.

The British Medical Association said that it had concerns with respect to the way comments relating to the proposed legislation had been represented, particularly in the Explanatory Memorandum accompanying the statement, which it did not think had adequately represented the balance of comments it had submitted. The Explanatory Memorandum states that the British Medical Association supported the proposals in principle and that,

The letter from the BMA went on to say that it had raised significant concerns, in particular over the detrimental impact such changes could have on the engagement of vulnerable groups with health services, which were not reflected in the Explanatory Memorandum. Significantly, the Merits Committee went on to say that it shared the BMA's concerns about the United Kingdom Border Agency's representation of the BMA's position in the Explanatory Memorandum. Is the Minister, too, concerned about the representation of the BMA's position in the memorandum, or will he go on the record as saying that the memorandum adequately represented the balance of comments submitted by the BMA-contrary to the views of both the BMA and the Merits Committee?

The Merits Committee report makes it clear that in order to get a better understanding of how the consultation fed into the policy development process, the committee had to seek further information from UKBA about concerns raised during the consultation, as well as about any risks and remaining dissatisfaction with the proposed changes. That further inquiry elicited

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information that was not contained in the Explanatory Memorandum: namely, that concerns have been expressed, including by the BMA, that an unintended consequence of the rule change might be that it would act as a deterrent for migrants to seek necessary medical care, and that three organisations had raised issues of confidentiality and/or of data protection. The issue of confidentiality was most actively highlighted by HIV/AIDS representative groups because in their view HIV/AIDS is a stigmatised condition.

The committee also received a submission from the National Aids Trust saying that the new rules would have a serious impact on public health by dissuading migrants with HIV from accessing testing and treatment. The National Aids Trust was also of the view that the rules might lead to unlawful discrimination against disabled migrants and indicated that it may mount a legal challenge on these grounds. Will the Minister say if the Government considered whether the new rules could be regarded as constituting unlawful discrimination in relation to any groups or categories of individuals?

Since UKBA said that the rule change was drafted so that an NHS debt would not result in a mandatory immigration refusal, and that the new rule would be applied on a case-by-case basis, the Merits Committee also wrote to the Minister seeking a full explanation of how the new rule relating to NHS charges of £1,000 or more being applied on a case-by-case basis would operate. The committee has now reported on the reply from the Minister responsible for immigration. In the light of that reply, its latest report states:

"The Committee notes that the guidance for decision makers seems to suggest that these medical cases will result in an immigration refusal in all but rare and extreme circumstances".

Will the Minister say whether he considers that to be a fair interpretation by the Merits Committee of the response from the Minister for immigration?

The Merits Committee undertakes valuable work on behalf of your Lordships' House, considering instruments and drawing them to the special attention of the House where necessary, in line with its terms of reference. Its report on the statement of changes to Immigration Rules raises serious issues about the Explanatory Memorandum and also makes it clear that the committee had to pursue further issues in writing because the level of explanation was less than it should have been. I hope that the Home Office and Home Office Ministers take seriously the work of the committee. If future reports contain further critical observations about the quality, accuracy and extent of the information provided by the Home Office, no doubt there will be more debates of the kind we are having today. The Minister has not been in his position for long. I hope that he will be determined to address the concerns raised by the Merits Committee in the report that we are considering, as well as the not dissimilar concerns raised in previous reports. I beg to move that the Committee do consider the statement of changes in Immigration Rules.

Lord Avebury: My Lords, before coming to the statement, I will say that as we get material changes to Immigration Rules at such frequent intervals and there is invariably a prayer tabled against each one, they

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ought to be made subject to the affirmative resolution procedure. I would be grateful if my noble kinsman will let us have his views on that matter.

We are considering this statement against the backdrop of several major crises hitting UKBA at the same time. There is the saga of the passport checks and the suspension of three top officials for the unannounced dropping of our guard against terrorists, money launderers and drug merchants-which now appears to have been the bright idea of the Home Secretary. Then there was the robust criticism by the chief inspector of the management of foreign national prisoners, with 1,600 being detained in January at the end of their sentences for an average length of 190 days, costing the taxpayer as much as if they had stayed in the Savoy hotel. A third of them appealed successfully against their deportation, meaning that if UKBA had made the correct decisions, it would have saved the taxpayer millions of pounds. There was the sudden revelation that the agency had discovered another 124,000 legacy cases to replace the 300,000 cases it was supposed to have dealt with over several years ending in July 2011. It is about time that we had a full-scale debate on all the catastrophes that keep engulfing UKBA, including an examination of whether the agency should be put out of its misery and its functions resumed by the Home Office. At least there would then be no question of where the buck stops.

The next general point I want to make is that this instrument, like others in the past covering changes to the Immigration Rules, is being debated after it has come into effect. Parliament cannot be seen to exercise control over legislation in these circumstances because however valid the criticisms we make, they could be accommodated by the Government only by bringing in a further order, which is unthinkable.

Turning to the statement, as the noble Lord, Lord Rosser, has said, the Merits Committee focuses attention on the proposal to refuse permission to enter or remain in the UK to anyone who has failed to pay NHS charges of £1,000 or more and to cancel any outstanding leave to remain for a patient who has run up that level of indebtedness to the NHS. Although the BMA supported the idea in principle, there are serious concerns over making it mandatory, irrespective of the patient's means or the nature of the illness for which she needed treatment. UKBA told the Merits Committee that it would be applied on a case-by-case basis, as the noble Lord pointed out, but has not yet received an answer to the request that the Minister should provide a full explanation of how discretion is to be exercised. I hope we are going to hear something about that from the Minister this afternoon.

An example that was given in the Merits Committee report, which has already been referred to by the noble Lord, Lord Rosser, is of patients with HIV/AIDS. This was raised by three organisations in the consultation, one of which was the National AIDS Trust, from whom your Lordships have now heard further. It believes that this proposal is immensely discriminatory and will have an immensely harmful impact on public health. It will cost the NHS far more in the long run because HIV-positive migrants will avoid treatment and become ill and HIV will spread within and beyond

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migrant communities at an estimated lifetime cost of £280,000 for each new patient becoming infected. The National AIDS Trust says the groups most affected will be asylum seekers, visa overstayers and those without papers who have often been living in the UK for years without lawful residence, not visitors who come here with the deliberate intention of getting free medical treatment.

There is nothing in the statement to cover migrants who simply could not afford to pay large medical bills. Let us take as an example a student on an English-language course lasting under six months who is involved in an accident and needs surgery and a week's hospitalisation. She could easily run up a bill of £1,000. Are we saying that her leave to remain should be abruptly terminated and her future career possibly ruined because of this accident?

If the proposal had been confined to certain categories, such as tourist visitors, who should take out medical insurance when they come to the UK, as our tourists do when they go to the US, for example, I could understand it. The impact assessment says that health and other professionals are travelling to the UK specifically to access NHS services and that in many cases they leave without paying. This means that they are identified by the NHS provider as persons who are ineligible for free medical treatment, and they could be asked to pay for it in advance.

There are a lot of other changes, most of which it seems are to correct errors in previous instruments, but some, whether acknowledged or not, are to accommodate judgments of the courts. It has been suggested that the amendments dealing with the evidence that has to be produced by tier 2 migrants and work permit holders was inspired by the case of Pankina. Although that is not stated to be so, perhaps my noble friend will confirm that it is so. There are amendments dealing with spouses and civil partners, among which is one to reinsert a paragraph that was accidentally knocked out in a previous statement that was considered earlier this year. I am sure that that is not the whole story because paragraphs do not get knocked out by accident and it would be useful if my noble friend could probe this further with UKBA to avoid any repetition of that event, at a time when it is so accident- prone.

4 pm

We welcome the belated reactions to the case of MB (Somalia), which was decided in 2008, under which divorced, separated or single parents and grandparents over the age of 65 are to be treated the same as widowed parents and grandparents of refugees and those granted humanitarian protection, but I would like to know why it has taken three years to arrive at this point. There are also what are described as technical corrections to the provisions for other family members of refugees and persons with humanitarian protection. The requirement for those persons not to have one or more unspent convictions on entry or on applying for further leave to remain is deleted because, as a matter of policy, that should be applied only to persons seeking indefinite leave to remain. If I understood it correctly, it amounts to defined family members who are convicted of offences above a certain level of

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severity being allowed in and being able to get extensions to their leave to remain, but they will be given ILR only once the convictions are spent.

Finally, there are pages of amendments dealing with the special arrangements that will apply between 30 March and 8 November 2012 for competitors in the Olympics and Paralympics and their entourages, known collectively as Games family members. Those arrangements are needed to enable us to comply with the IOC requirement that GFMs can travel without passports using their Olympic credentials, but if a GFM wants to come here earlier than 30 March or to stay beyond 8 November, as I understand it, they would need an ordinary visitor visa. Am I right in thinking that, while here, a GFM is allowed to work in a Games-related occupation? Would my noble friend say how that is being defined? One of the benefits of having the Games in the UK is supposed to be that they provide employment and, if thousands of visitors are mopping up all the temporary jobs that will be created, it takes some of the gilt off the gingerbread.

I have one more question to ask my noble friend about GFMs. Presumably, there is nothing in the IOC rules that requires us to provide non-EU GFMs with free medical treatment. Does the rule change about outstanding NHS charges apply to them, as it would to any other non-EU visitor?

The Minister of State, Home Office (Lord Henley): My Lords, I thank the noble Lord, Lord Rosser, for introducing this debate and also my noble kinsman Lord Avebury for his comments. I start with the Merits Committee and its complaints about this. Many years ago, I was a member of what is still, I think, called the Joint Committee on Statutory Instruments, which is a relatively toothless body as regards considering the merits of particular statutory instruments. When I was a member of the Government led in this House by my noble friend the then Lord Cranborne-who is now the noble Marquess, Lord Salisbury-I was very proud that we brought in the Merits Committee precisely so that it could look at the merits of statutory instruments. That was some time in the mid-1990s, and a very good job it has done over the years. Therefore, we are very concerned about complaints relating to orders that we have put forward and we take them very seriously. The complaints on this occasion are largely about the Explanatory Memorandum, whether we think that was adequate and whether it misrepresented the position of various others. I thought that that Explanatory Memorandum was adequate, but if complaints have been made about it by the Merits Committee we will have to take that seriously. We will have to up our game and no doubt make sure that we do better in the future.

I was grateful that the noble Lord, Lord Rosser, referred to the letter from my honourable friend Damian Green, which was sent to the Merits Committee after its 40th and 41st reports on this matter and dealt with many of those complaints. I am grateful that it has now been made available to the House and is published on the Merits Committee's website. As I have said, we will obviously take these matters seriously and will look at the criticisms that it made.

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My noble kinsman Lord Avebury also objected to the fact that the statement of changes was subject to the negative procedure and not to the affirmative procedure. I am afraid that we will have to go back in time to the original legislation that created them as negative resolutions rather than primary. I do not know when that was but if we want to change that, it would obviously be a matter for primary legislation. I do not think that there is any Henry VIII power for me unilaterally to change them. That is why I say to my noble kinsman that one of the reasons why very often one has to debate these matters after they have come into effect is that the order comes into effect on a certain date and there should be time for Members of both Houses either to pray against them or to have a debate of this sort in the Moses Room.

I should now like to turn to the substantive questions on the statement of changes to the Immigration Rules and set out our case because it would be useful for the Committee to know why we are doing what we are doing. As all will be aware, the National Health Service is the national health service and its resources in these straitened times are limited. It is right that it should be shielded against misuse by those who incur and fail to pay charges in compliance with law.

The NHS debtors rule is being introduced for a number of important reasons. First, it will deter overseas visitors from misusing the NHS; that is, to deal with the problem of health tourism. Secondly, it will ensure that overseas visitors understand their need to meet their obligations to pay for the NHS services they use. Thirdly, it will reassure the public that we are determined to operate fair and robust controls on migrants' access to public benefits and services. Finally, it will enable other patients to benefit indirectly from the recovery of NHS resources. That, again, is an important point and we must always remember that those resources are finite.

The rules must also be seen in the context of the joint UK Border Agency and the Department of Health review of migrant access to health services. Following this review and public consultations by the Department of Health and the border agency last year, the NHS charging regulations for England have been amended. This amendment provides extra protection for potentially vulnerable groups, including failed asylum seekers supported by the United Kingdom Border Agency and children from overseas who are in the care of a local authority. They are no longer liable for NHS charges.

I recognise concerns raised that the new rules may deter migrants from seeking necessary medical care. I must stress that although these rules relate to the entire United Kingdom, those relating to the NHS will vary in the four different parts of the UK. In England, primary care as provided by GPs, treatment in accident and emergency departments, and most treatments carried out on public health grounds are free of charge. Furthermore, urgent or immediately necessary treatment must not be delayed over the question of payment.

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The United Kingdom Border Agency also has an important role to play in protecting the economy and publicly funded services and their lawful users from the consequences of inappropriate access. The equality statement that was published with the laying of the rules outlines the Government's view that the rules are a proportionate measure in pursuance of this legitimate policy objective. Nevertheless, all cases will be considered on their individual merits with decision-makers afforded discretion to take account of exceptional compassionate factors and obliged to apply human rights legislation, as we always do, and equality legislation. Applicants will remain able, as now, to raise any compelling compassionate circumstances which they consider pertinent to their application, and these will be considered, as is current practice.

The noble Lord, Lord Rosser, suggested that these changes were discriminatory and raised the question of treatment for HIV. I have made it clear that the underlying policy objective, that of protecting publicly funded services for those with a lawful claim to them, makes this a proportionate response. Medical information will not be shared between the NHS and the UKBA. However, it will remain open, as now, for applicants to raise any compassionate or medical factors that they consider pertinent to their applications. We will review the question as to whether people living with HIV and not ordinarily resident here should be exempted from their charges for HIV treatment.

I believe that we need robust controls to protect our public services, just as we need robust controls in other aspects of the control of our borders, as was made clear by the responses in another place to the Statement made by my right honourable friend the Home Secretary and in this House when I repeated that Statement earlier this week. Not only do we need to protect public services, it is also right that if someone does not pay the charges they incur for treatment, they should normally be refused any further immigration applications until they have paid their debt.

I hope that that deals with most of the questions that have been raised. I understand the concerns and I go back to the complaints made by the noble Lord, Lord Rosser, quoting from the report of the Merits Committee about our Explanatory Memorandum. As I said, if we got that wrong, we will try to do better in the future. With that assurance, I hope that the noble Lord will accept that this is a satisfactory and proportionate response to these issues.

Lord Avebury: As my noble friend is dealing with the question of NHS charges, does he have a reply to my question about whether, under the Olympics rules, GFMs will be exempt from them?

Lord Henley: My Lords, if I may, I would prefer to write to my noble kinsman on that point. My understanding from discussions I had earlier with officials is that we are all right under the IOC rules, but if I am wrong on that, I will write to him.

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Lord Rosser: My Lords, I will be brief. I thank the noble Lord, Lord Avebury, for his contribution to the debate and the Minister for his reply, including his statement that regard will be paid to the concerns expressed by the Merits Committee, in particular over the Explanatory Memorandum. That is all I wish to say in response.

Motion agreed.

Local Authorities (Contracting Out of Community Infrastructure Levy Functions) Order 2011

Local Authorities (Contracting Out of Community Infrastructure Levy Functions) Order 2011
29th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

4.14 pm

Moved By Baroness Hanham

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, the community infrastructure levy allows local authorities to choose to charge a levy on new development in their area in order to raise funds needed to meet the demands of hosting that development and, in turn, to enable growth. The levy was introduced by the previous Government through the Planning Act 2008. Part 2 of that Act provides for regulations to allow the imposition of the levy. The Community Infrastructure Levy Regulations 2010 made the first use of those powers bringing the levy into effect from 6 April 2010.

The instrument before the Committee today allows local authorities, if they so wish, to contract other parties to deliver most of the activities they carry out under the community infrastructure levy regulations. The draft instrument is entirely consistent with other contracting-out legislation, made under the same powers, for contracting out of functions concerning the administration and enforcement of the business improvement district levy and council tax and non-domestic rates. Both instruments were considered by this Committee.

The objective of the order is to provide levy authorities with the scope to contract out specified functions and thereby give them the means to meet their responsibility to ensure best value. The order is of interest primarily to community infrastructure levy charging and collecting authorities. We consulted the Local Government Association and representatives of other levy authorities which welcomed the approach proposed by the draft order.

Where an authority chooses to contract another body to undertake a function, that body then does so on the authority's behalf; that is, the contractor acts as

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an agent of the authority to undertake the function it is contracted to deliver. Article 3 makes this fact clear by requiring that where a contractor, in doing the work that the authority has contracted him to do, enters into an agreement with another person, that agreement has to make it clear that the agreement is between the authority and the person, not the contractor and the person.

It is possible to contract out only functions that an authority can delegate to a committee, sub-committee or officer, not functions that the authority itself must carry out. Where legislation requires a meeting of the authority-or, in the case of the Mayor of London, the mayor-to approve, that function cannot be contracted out. Article 4 of the draft order reflects these restrictions and reiterates that such functions may not be contracted to another party. The effect is that an authority cannot contract out its functions to propose, implement or withdraw a community infrastructure levy charge in its area or delegate its power to ask a court to consider imprisoning a levy debtor.

These safeguards mean that decisions concerning whether to raise a charge, including at what level the charge should be set and whether to continue to do so, are for the authority and it cannot delegate it. The draft instrument has no effect concerning the spending of levy receipts; the community infrastructure levy regulations already provide for authorities to pass funds to any person they choose and, where they do so, the authority remains responsible for ensuring they are applied appropriately. The functions that this order allows to be contracted out include: gathering evidence to support consideration of whether and at what rate to apply a charge; the administration of the charge, including processes for notifying, collecting and enforcing liabilities; and the administration of the resultant funds.

The order provides local authorities with the flexibility to ensure that their responsibilities are delivered in the most effective and efficient manner possible, be that in-house or through another party. It allows for a competitive process to be undertaken, which will provide authorities with the scope to drive down costs and drive up standards. Importantly, the order does not allow for decisions concerning whether and at what rate to charge a levy on development in an area to be delegated or create scope for another body to spend the proceeds.

I am satisfied that the order is compatible with the rights contained in the European Convention on Human Rights. I beg to move.

Lord Kennedy of Southwark: My Lords, the order itself is not controversial, so I do not envisage a long debate on it. However, I have a few brief comments to make. As the noble Baroness, Lady Hanham, has advised the Grand Committee, primary powers were taken in the Planning Act 2008 to enable the Government to make regulations allowing local planning authorities to set a levy for their area to be paid by the owners and developers of land in order to contribute to the provision of the infrastructure needed to support development or planning in their area. The process

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was being determined, but the general election got in the way. Local authorities will have the ability to outsource all or part of their functions related to the levy, except where they are specifically prevented from contracting out that function.

I am aware that there has been a consultation process and that all the responses support this preferred option. I have one question for the noble Baroness which revolves around the review. I see that the review of the levy itself is scheduled for 2015. Is the noble Baroness satisfied that that will be soon enough, and were local authorities consulted on that particular point?

Baroness Maddock: My Lords, as a former member of the Merits of Statutory Instruments Committee, at times I take a keen interest in secondary legislation. This is in an area that I was involved in when I was on the Front Bench, so I have taken a particular interest in it. It has already been said that the order is not controversial. The main legislation was the Planning Act 2008, followed by the Community Infrastructure Levy Regulations 2010. I wonder whether it was flagged up, particularly in the main legislation, that later on this is how things would happen. One of the reasons the Merits Committee does such a good job is because legislation in recent times has become more and more complicated, and more of the detail comes out in secondary legislation. My noble friend and I have been involved in local government legislation over the years, and we know how difficult this has been. Again, I wonder whether the way in which this was going to be enacted was flagged up in the primary legislation.

I have one another minor question, which might be a little pernickety-I must account for it by saying that I have served on the Merits Committee. I notice that the consultation period was only six weeks. The statutory consultation period is quite often 12 weeks. I have not looked at it closely enough to know whether this was the correct period, and I understand that the Local Government Association and others were consulted, so there are no issues around it. However, I would like to know whether that was the correct period of consultation.

Baroness Hanham: My Lords, I thank the noble Lord and the noble Baroness for their questions. I shall start with my answer to the noble Lord, Lord Kennedy: 2015 is considered reasonable given that the first charges will start in the new year, 2012, and that time is needed to allow the arrangements to bed down before they are reviewed. Effectively, they will have three years in which to do so.

The noble Baroness, Lady Maddock, is probably more familiar with the 2008 legislation than I am since I expect she was there, but like me, she may not remember it. The consultation period of six weeks was set out in the Deregulation and Contracting Out Act 1994, so it fell within the normal parameters, and indeed the Local Government Association was consulted as well. I hope that noble Lords will be content with those replies.

Motion agreed.

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West Northamptonshire Development Corporation (Area and Constitution) (Amendment) Order 2011

West Northamptonshire Development Corporation (Area and Constitution) (Amendment) Order 2011
29th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

4.24 pm

Moved By Baroness Hanham

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham):My Lords, the West Northamptonshire Development Corporation is a non-departmental public body sponsored by the Department for Communities and Local Government and was established in 2004. Its purpose is to secure the regeneration of West Northamptonshire, an area identified for regeneration and economic growth, where population is growing at twice the national average.

Over time, the corporation has done a lot of good work, and I recognise all those who have been involved, but this Government's approach is to promote more locally-led arrangements in a way that does not put at risk key delivery projects. Our priority is the economic growth and potential of West Northamptonshire's priority sectors, including high-performance engineering. We want to encourage the area's unique opportunities, including Silverstone, the logistics "golden triangle" and Northampton Waterside Enterprise Zone. The corporation has been very successful in delivering a range of projects to date, resulting in £70 million of infrastructure improvements, levering in a further £200 million of private sector investment, getting approval for up to 10,000 new homes and creating of 2,500 jobs.

For long-term success, this growth needs to be locally led, partly through the local enterprise partnership and partly through the local authorities. This order is a step towards that goal. The purpose of the order is to reduce the size of the board of the corporation from 11 members in addition to the chairman and deputy chairman to seven members in addition to the chairman and deputy chairman. Of the seven remaining board members, six will continue to be reserved for nominated representatives of the four local authorities, maintaining the commitment given to the Lords Select Committee during the passage of the 2004 order. The remaining board member, chair and deputy chair will continue to be appointed through open competition if the need arises, although we do not expect there to be a need for a further round of appointments.

The amendment will bring local authority members into a majority on the board and is another step on the path of the reform of the West Northamptonshire Development Corporation that will see its transition from a statutory body to a local authority delivery vehicle by the end of 2013-14-that is, on 1 April 2014 -in line with the announcement made on the West Northamptonshire Development Corporation as part of the public bodies review in October 2010.

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I recognise that there are always arguments for and against a particular date. There are those who would want to see an earlier date and others who want the corporation to continue for longer. I believe that this approach strikes the right balance in supporting regeneration investment at its most critical stage and that the corporation should plan to this timetable. The process for change has already begun with the return of the first phase of statutory planning powers from the West Northamptonshire Development Corporation to the local authorities in April 2011. The full return of planning powers will be completed in April 2012, subject to the completion of negotiations with the local authorities and parliamentary approval.

After the full return of planning powers, the West Northamptonshire Development Corporation will focus on using its statutory powers to take forward five key projects in Northampton. By the end of 2013-14, we expect these projects will transfer to the local authority vehicle for completion. I would like to take this opportunity to thank the West Northamptonshire Development Corporation for its continuing co-operation in addressing these issues and in working towards new arrangements for the future. I beg to move.

4.30 pm

Lord Boswell of Aynho: My Lords, I thank the Minister for her entirely satisfactory explanation of this order and for setting up what is a pragmatic and well considered timetable for evolutionary change. My reasoning in troubling the Committee for a few moments is that, at the time of the inception of the corporation in 2004, I was the constituency Member of Parliament for Daventry, which embraced two of the three areas involved, Daventry and Towcester, but not, of course, the borough of Northampton; nor was I at any stage a member of the overarching local authority, the county council. But I have taken an interest in this as a concept and I am pleased that it is developing as it is.

I thought that the then Labour Minister, in introducing the order, fairly characterised my approach as being one of what he then called pragmatic acquiescence. That is where I am today: I am happy to have the corporation, but I am equally happy to see it evolve back into local authority control. I would also record its achievements over time which have been rooted in common sense in not throwing its weight around and in working wherever possible, for example, on the planning powers with local authorities, moving from a degree of misunderstanding to a much better understanding. I suppose it is incumbent on my new status that I should say for the record that I have not consulted my two very good successors-the constituency was split in the shape of Mr Heaton-Harris in Daventry and Andrea Leadsom in Towcester-or indeed the Northampton MPs, or the development corporation itself. I am happy with the way it is shaping up. Of course, the order will streamline the corporation, which is to be welcomed.

As regards what might be termed the mission and the geography of the situation, my noble friend has already touched on the way in which it has-not been solved-been helped to take forward the agenda for the two parts of the corporation that used to be

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constituent within my old constituency. We are very lucky indeed to have two new university technical colleges, one in Daventry and one in Silverstone which adjoins Towcester. They are both concerned with technology and advanced engineering, about which I feel very strongly. That is part of the mission for that part of the world.

The Minister has already explained that the main thrust of the continuing activities of the corporation will be in Northampton. I tread carefully here because I would not wish to trespass on a potential non-pecuniary interest which I might have at some stage. I am aware, partly because of connections that I still have around there, of some very imaginative thinking in relation to possible uses of that large tract of land which is not derelict but underused in and around the riverside in Northampton, or the waterside, which constitutes broadly the enterprise zone. There are huge opportunities there; not necessarily the ones that I have heard about but at least there are options for some imaginative concepts. I know that the development corporation is one of the landowners and it may well have a role in assembling other packages or the infrastructure in support of that. I would welcome that and I think that in itself is sufficient justification for its continuation.

I put down one marker of concern. As I think the Minister will know, there is a long history of flooding in Northampton. After the disastrous floods in 1998 which resulted in fatalities, some of that was ameliorated by investment by the Environment Agency. Privately, I would have said to people that this is not merely a technical matter to resolve-although as a former Minister for flood defence, I am aware that there are technical solutions to these problems-but it is also a political matter, although political with a small "p". If there is major investment in the area, people will have to be convinced that it is viable and that those who live there or pass through it are not at any risk. That is something that has not been attractive for the town and which has not been of economic use. Before closing, I should perhaps mention for the amusement of the Committee that I was once somewhat instrumental in bulking up quantities of grain that were stored in the disused power station and then transported on the railway line, which is now discontinued. That was about 30 years ago, but there has not been much joy out of there over the past few decades and I think the time is coming for an imaginative project and for the evolution of this corporation, which is a rather unusual one, back into local authority ambit and control. It would be a fitting finale to have this particular set of projects safely landed, so I strongly support the Minister.

Lord Kennedy of Southwark: My Lords, as noble Lords will be aware, this is one of only three urban development corporations in the UK and the only one outside London. West Northamptonshire Development Corporation has a number of wide-ranging powers. These come under three clear headings: investment, planning and development. The corporation has brought considerable sums of money into the local community, in excess of £70 million. It determines strategic planning applications and has wide-ranging powers, including the ability to acquire, manage and sell land and property.

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As I have advised noble Lords before, in my previous occupation I spent many happy years in the East Midlands. It is an area I know reasonably well, but obviously not as well as the noble Lord, Lord Boswell, although I do of course agree with the remarks he just made to the Grand Committee. The purpose of the order is to reduce the size of the board from 11 to seven members in addition to the chair and deputy chair. I am content with that, but I would like to confirm one thing, although I am sure the answer will be yes. Have the local authorities been consulted and are they happy with this? Obviously, if they are, I am content with the order.

Finally, I thank the officials at the department. A couple of days ago I asked them some questions about this and a previous order. I got the information back very quickly and I was very happy with that.

Baroness Hanham: My Lords, I am extremely grateful for the general support for these orders and I understand very well about the close interest of the noble Lord, Lord Boswell, in this area. Regarding the flooding, I cannot do anything about his bales of hay, I am afraid. The corporation will need to talk to the relevant bodies, including the Environment Agency and any local people who are affected, so I hope he will be reassured about that. I thank the noble Lord, Lord Kennedy, for his response. Yes, the local authorities have been consulted. They are now going to be the major presence on the corporation, so they will be content with that. I thank the noble Lord for his comments about the department; we are always very happy to help.

Motion agreed.

Statistics and Registration Service Act 2007 (Disclosure of Pupil Information by Welsh Ministers) Regulations 2011

28th Report from the Joint Committee on Statutory Instruments
Statistics and Registration Service Act 2007 (Disclosure of Pupil Information by Welsh Ministers) Regulations 2011

Considered in Grand Committee

4.38 pm

Moved By Lord Wallace of Saltaire

Lord Wallace of Saltaire: My Lords, these regulations, which are being considered together with the Statistics and Registration Service Act (Disclosure of Value Added Tax Information) Regulations 2011, are the third and fourth uses of the data-sharing powers under the 2007 Act and the first time that the powers have been used by the current Government. The Welsh school pupils' regulations make possible the sharing with the Office for National Statistics of data on individual pupils attending schools in Wales. The ONS

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is the executive office of the UK Statistics Authority, which is referred to in the legislation as the Statistics Board. The regulations follow those made in 2009 that allowed the ONS to access information on pupils attending schools in England.

Access to these data will enable the ONS to improve the accuracy of mid-year estimates and projections of population for local areas in Wales, to develop ongoing research as part of the Beyond 2011 programme, which is to consider possible alternatives to the traditional census in producing census-type statistics and to improve the assessment of the quality of statistics on schoolchildren from the 2011 census.

The other regulations being debated today allow the ONS to receive certain information provided to Her Majesty's Revenue and Customs in VAT returns. This will enable the ONS to improve its business and economic statistics and to reduce the burden on businesses, some of which will no longer need to supply this information in addition to other information through regular returns to the ONS. The data will also be used for economic analysis and to make improvements to various business surveys run by the ONS.

The regulations permit the sharing of a long run of VAT data submitted to HMRC on or after 1 October 1985 to provide a better economic understanding of the whole economic cycle. Data confidentiality and security arrangements are being assessed as a fundamental part of the preparation of the data-sharing agreement between the organisations concerned. The ONS already works to very tight confidentiality guidelines and has an excellent data security record. It has put the necessary measures in place to protect the data and to ensure that there is no disclosure of any personal information about specific pupils or businesses.

Section 39 makes it an offence for a member or employee of the authority, including the ONS, to disclose personal information it holds other than in tightly defined circumstances. Any unlawful disclosure could result in imprisonment and/or a fine. Both sets of regulations enable administrative data already collected by government to be further utilised but only for the purposes set out in the regulations; that is, for the ONS to improve the statistics it produces on the population and on the economy.

In summary, providing the ONS with access to data on Welsh pupils and businesses' VAT data will lead to improvements in the accuracy of the statistics that it produces and to efficiencies which will benefit government and society as a whole. Better statistics will inform better policy making. I therefore ask the Committee to support and accept both regulations. I beg to move.

Lord Wigley: My Lords, I have no intention whatever of objecting to these regulations, but I should be grateful for one or two points of clarification on the ONS regulations. First, I noted the emphasis placed by the Minister on data confidentiality, which obviously is central to all this. I note that in Regulation 2, the list of details about the pupil that will be made available excludes, of course, the pupil's home address, presumably because of the dangers that exist. Yet, it includes the postcode. Certainly, with the name of Wigley and a postcode in my area, it would be fairly clear who that

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person is, although it may be more difficult with the Evanses and the Joneses. Given that, there cannot be a watertight assertion of data confidentiality.

My second point is in regard to Regulation 2(a)(vii), which refers to the,

I am not quite sure what is meant by the "source of that information", but I imagine that it could be a matter for some consternation. Is the Minister in a position to tell me why? If not, perhaps he would be good enough to drop me a note about it because I realise that I may be splitting some hairs on these matters.

4.45 pm

Thirdly, Regulation 2(c) refers to:

Given that we are considering the position in Wales, where English and Welsh are equal official languages since last year's enactment, why is it only English that is required here, as opposed to English and Welsh? In the same sub-paragraph, there is a reference to a "pupil's first language". What is the definition of a "first language"? That is not always altogether clear. In a bilingual or multilingual community, is it the language that was the first to be spoken by the child or the language in which the child is more fluent by the time that child is in school? A definition of "first language" would be very helpful. Again in that sub-paragraph, as the pupil's fluency in English is the key, what is the position of a child who comes over, as a number of children have, from Patagonia to settle in Wales, whose first language is Welsh and whose second language is Spanish? Does that not raise a few questions about the accuracy of information that may be gathered in this way?

My last point concerns the restriction on further disclosure of personal information in Regulation 4(a)(i), which says:

Does that mean that any enactment on either a UK, an England and Wales basis or a Wales basis? Is it all-inclusive, or is it meant to refer only to UK or England and Wales enactments? I would be very grateful for some clarification on those few questions, and I look forward to it.

Lord Tunnicliffe: My Lords, the Minister will be delighted to know that I do not intend to oppose or object to these regulations. I can see the relief on his face at that statement. I will make a few comments on the reasoning and the likely outputs, and just touch on the confidentiality point.

The mood of the Explanatory Memorandum seems to suggest that the Welsh regulation-I will only talk to the Welsh regulation-is to facilitate the Beyond 2011 Programme. It does not quite say it, but the language of the Explanatory Memorandum seems almost to suggest that the decision has already been made not to have the 2021 census. In this day and age there are probably three reasons for having a census. The first is as a source of information for decision making. I have looked at the Beyond 2011 Programme

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and the sense of trying to produce something of equivalent capability for decision making is there in the terms of reference, and that is good.

We have also moved on in what the census is used for. The census has become highly valued in our society for academics, for what it can tell us about history, for the insights produced by past censuses- I am not sure what the correct plural is-that the academics have been able to glean, and the extent to which many citizens of this country find great value in being able to look back into their past, their families and the history of their surroundings. I hope the Government have not made the decision to abandon the 2021 census yet, and I hope that in making that decision they will take all considerations into account, including those that are of value to individuals as well as to the decision-making bureaucracy. Perhaps I should say administration-I would not call it bureaucracy because I like administrations.

My second question is: what are they going to collect? The terms are probably well defined in some administration Act, but I would be grateful if the Minister would flesh them out a bit. The two things that stand out are the ethnic group and the source of that information, and what we mean for these purposes. My wife was foolish enough to buy some tickets to the Millennium Stadium, so I have to be partly Welsh in this. I am not sure whether Welshness is ethnic or not, but as sure as hell it is sensitive. Is a sense of Welshness or Celticness part of what is being gathered here, as well as other things? Clearly it is an important issue in the country. What do we mean by the "source of that information"?

The second area is what is almost the political correctness around asking about a pupil's level of fluency in English where their first language is neither English nor Welsh. I see that if your first language is neither English nor Welsh, fluency in English is quite important. However, fluency in English is also important if your first language is Welsh, because in the United Kingdom the extent of fluency in English must be important information about the way people live in the wider community. We move about this land from Wales to England. If one is gathering information about fluency in languages, one should gather it comprehensively. We have a peculiar situation where, as I read it, if you are fluent in Welsh your fluency in English is not even a consideration.

Lord Wigley: Before the noble Lord leaves that point, I say that I go along with what he says on the need to ascertain fluency in English. However, given the growing importance of the Welsh language in Wales, would he accept that there would be an equal case for ascertaining fluency in Welsh?

Lord Tunnicliffe: I certainly see that the people of Wales might think that there would be an equal case-and because I am not a brave person, I would support that.

The Explanatory Memorandum refers to a series of outputs. Paragraph 7.4(ii) refers to,

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Once again, I am not clear what a migrant is. Is it somebody moving from Shropshire to Monmouthshire, or somebody with no connection to the United Kingdom who finds themselves in Wales as the first place they come to? Does it include somebody who comes from outside the United Kingdom who goes first to England and then to Wales? What level of granularity are we talking about when it comes to migration? Are we talking about small movements or larger ones?

Finally, I must say a word or two about confidentiality. The essence of much of the data-gathering law in this country is that it puts barriers between departments so that they cannot look at each other's data, in order to maintain confidentiality. We then break down those barriers in order to use the data in a richer way. That is an entirely reasonable thing to do, but it is equally reasonable that whenever the barriers are broken down, as they are by these regulations, we should seek assurances that we are moving forward on confidentiality. It is no secret that there were unfortunate lapses under the previous Administration. I am absolutely sure that they were not in any way malicious. We acted in good faith and I am sure that this Administration, too, will act in good faith. However, have they made progress towards being able to assure us about improved confidentiality? Are there any new techniques, audits or penalties that will allow the Minister to say that confidentiality when this barrier is taken down will be even better than it was in the past? With those few comments, we are quite happy to support the regulations.

Lord Wallace of Saltaire: My Lords, I thank both noble Lords who have contributed to this brief debate. I feel that the issues of data sharing and data confidentiality are like the issue of the security of the Palace of Westminster. We start off in entirely contradictory directions. We want to bring as many people as possible into the building because we want to be as open as possible, but at the same time we want to maintain the highest possible level of security. It is extremely difficult to combine those aims. We all recognise that it is much the same with data. The Government collect a great deal of data and it is immensely convenient for the purposes of economic and social policy to share as much of that data as possible, but we all know of the problems of confidentiality and of allowing the state to build up a vast database that reveals everything about every individual. The previous Government passed the 2007 Act as part of the effort to reconcile these contradictory directions and to provide an independent authority which would build in the tension between what Ministers want and what is required in terms of the confidentiality of data while attempting to avoid imposing on individuals and businesses the requirement to fill in forms every other day of the week.

Perhaps I may say a little about the Beyond 2011 Programme and the future of the census. A decision has not yet been taken as to what we will do about the 2021 census, but I recognise from the papers I have read that there are a number of question marks over it. First, this year's census cost £500 million to collect, and it is estimated that the 2021 census may cost around £1 billion. That is an issue that one has at least to consider. Secondly, the accuracy of the census has

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been going down from one successive census to the next because people move around much more rapidly than they used to. Preliminary estimates of the accuracy of this year's census are that for each local authority area it is between 94 per cent and 80 per cent. When one has dropped to 80 per cent accuracy, one is into quite severe problems, particularly in terms of social policy, because it is for precisely those vulnerable communities where children do not have good English and where there are new migrants to this country, whether from Pakistan, Hungary or Patagonia, that all the different instruments of local and national government which combine to assist such communities need to be pulled together.

What is going on in the Beyond 2011 Programme is a series of experiments to see how far we can improve the accuracy of data and how far we can perhaps provide, from alternative measures, a rolling programme of surveys and estimates which will substitute for the census in the future. I recognise that the census itself has immense historical value. In our house in Saltaire, which was built in 1863, we have in the hall the five censuses from 1871 to 1911. They tell us who lived in the house, how many people there were, where they were born and so on. The documents provide a fascinating snapshot of what was happening in a mill village during that period. We would indeed lose a very interesting historical record, but resistance to filling in the census form is sadly also growing. This year we ourselves faced questions such as which of our two houses we should put down, and as our younger people come and go, we wondered who we should list as actually resident in the house.

We have been extremely speedy in getting through our statutory instruments this afternoon, and I must say that the expert officials who were going to give me advice in answering all the questions will arrive within the next half-hour. Therefore, in answer to some other questions that were put to me, it would be better for me to write to noble Lords than to offer them my half-informed impressions.

There was a good question about the definition of a pupil's first language. Again, it is quite right to recognise not just bilingualism in Welsh and English but, as in the part of England in which I do my politics, bilingualism in Urdu and English, or a whole range of other languages; for example, in Bradford and Leeds I am very conscious that the census failed to pick up quite substantial refugee and other communities. In the last election my wife and I canvassed a street that was almost entirely inhabited by people from Burma. I do not think that had been picked up by the authorities at a national level, but the local schools knew what was going on because that was where their children were going. That is part of the reason and justification for this sort of element.

I look forward to hearing from the noble Lord, Lord Wigley, perhaps on another occasion, just how large the migrant flow from Patagonia to Wales is-one of the many flows that are, as we know, going on in all directions at the moment. West Yorkshire certainly has a very large number of different communities and some of them are extremely mobile. A very large number of Poles, Lithuanians and Ukrainians came in

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the past 10 years. We do not know how many of them are still in West Yorkshire or how many of them have gone home. Again, that is the sort of thing that these sorts of surveys and statistics help us to discover.

I hope that noble Lords will accept that I will write to them about the other questions that they raised. I commend these regulations to the Committee.

Motion agreed.

Statistics and Registration Service Act 2007 (Disclosure of Value Added Tax Information) Regulations 2011

Statistics and Registration Service Act 2007 (Disclosure of Value Added Tax Information) Regulations 2011
29th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

5.02 pm

Moved By Lord Wallace of Saltaire

Motion agreed.

Al-Qaida (Asset-Freezing) Regulations 2011

29th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

5.03 pm

Moved By Lord Sassoon

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, asset freezing is a vital and necessary global response to the threat from al-Qaeda. It is a tool to disrupt the flow of funds to al-Qaeda, helping to prevent them executing attacks and supporting their networks.

As a permanent member of the UN Security Council, we are committed to meeting our obligations under the UN charter, and we support the UN's al-Qaeda asset-freezing regime. The regulations before the Committee today will ensure that we continue to meet our international obligations and prevent funds from reaching persons associated with al-Qaeda. In particular, they reflect UN Security Council Resolutions 1988 and 1999, which were agreed in June this year.

I will provide further detail on these changes. First, it is important to clarify that the regulations we are debating today do not apply to the terrorist asset-freezing regime mandated by Resolution 1373. That resolution is implemented in the UK under the Terrorist Asset-Freezing etc. Act 2010 passed last December. The regulations under debate apply only to the UN al-Qaeda asset-freezing regime established under UN Security Council Resolution 1267 and amended by Resolution 1333 and subsequent resolutions. That regime, established

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in 1999, initially applied an asset freeze only against the Taliban. It was subsequently extended by successor resolutions to apply an asset freeze against Osama bin Laden and individuals associated with al-Qaeda or the Taliban.

The changes we are debating today stem from the latest periodic renewal of the mandate of the United Nations Security Council in June 2011 when it unanimously adopted Resolutions 1988 and 1989. These resolutions split the Resolution 1267 al-Qaeda and Taliban asset-freezing regime into two separate regimes, one in relation to Afghanistan and one in relation to al-Qaeda.

Resolution 1989 provides for the al-Qaeda regime, with which we are concerned today. It maintains sanctions on those individuals and entities associated with al-Qaeda who were designated under the Resolution 1267 asset-freezing regime and strengthens existing due process procedures. The improvements include the introduction of triggered sunset clauses. They will make it easier and more transparent to delist individuals who no longer meet the listing criteria and who are no longer considered to be associated with al-Qaeda. Delisting recommendations by the ombudsperson or requests by the state that made the original designation request will trigger the sunset clause. At that point the person will be delisted after 60 days unless the sanctions committee decides unanimously to maintain them on the list. Resolution 1989 also strengthens the role of the ombudsperson. The resolution recommends increased capacity for the ombudsperson's office and greater provision by member states of information for case reviews, and encourages individuals to submit delisting petitions to the ombudsperson. The Government believe that these changes represent a very good and very necessary outcome that the UK, together with our Security Council partners, worked extremely hard to achieve.

As your Lordships are aware, the UN al-Qaeda asset-freezing regime is global in its application. All listing and delisting decisions are made by a committee of the UN Security Council, and once individuals or entities are listed, their assets must be frozen by all states as a matter of international law. Throughout the European Union, the al-Qaeda asset-freezing regime is implemented by Council Regulation (EC) No 881/2002, as subsequently amended, and is directly applicable in national law.

To implement and enforce the al-Qaeda asset-freezing regime fully in the UK, domestic regulations are needed to put in place penalties, and licensing and enforcement mechanisms. The key features of the regulations are that they define: the designated persons covered under the al-Qaeda regime; the prohibitions which apply in respect of designated persons; and the criminal penalties which apply to UK persons who breach the prohibitions. There are also provisions for the granting of licences exempting activities from the prohibitions, for the gathering and sharing of information and for allowing closed material to be employed in proceedings that challenge decisions made under the regulations.

These regulations revoke and replace the Al-Qaida and Taliban (Asset-Freezing) Regulations 2010, but I can assure your Lordships that there is no gap in the

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powers or penalties required to enforce the al-Qaeda asset-freezing regime in the UK. The 2010 regulations continue to have effect until the 2011 regulations come into force.

I know your Lordships understand the importance of the UK meeting its obligations to enforce the UN al-Qaeda asset-freezing regime. The regulations before the Committee are vital to meeting that obligation. Asset freezing is a critical element of the global response to the threat from al-Qaeda, and the UK fully supports the UN's al-Qaeda asset-freezing regime. At the same time, UN Security Council Resolution 1989 strengthens existing due process procedures, which the UK has been arguing for at the Security Council.

In the Government's view, the regulations before the Committee today represent an effective, fair and proportionate way of giving full effect to the EC regulation that meets the obligations of the Security Council resolution within the UK. I therefore commend these regulations to the Committee.

Baroness Kramer: My Lords, I have no objection to the regulations and I will take only a few moments of the Committee's time to seek clarification on a couple of points. From the perspective of my colleagues, it is clearly necessary to tackle not only terror but the funding of terror. This legislation is part of that overall approach. We are pleased to see the strengthening of due process and the sunset clauses that are part of the regulations.

I will ask a couple of very small questions. Will the Minister clarify that no practical implications of any significance will follow from separating the al-Qaeda regulations from those applying to the Taliban? Is this just a measure to fall into line with EU and UN resolutions? In moving from the umbrella of one set of regulations to the umbrella of another, will the process be seamless? Is there any possibility of a slip between the two? Obviously, we would not wish to see such an opportunity exploited.

My second question is perhaps of more interest to the wider community. Will the Minister give us some reassurance that these regulations will not put an additional burden on ordinary people? He will be very aware that the combination of anti-money laundering and anti-terror legislation has put a significant burden of cost on both individuals and businesses, not least when it comes to the long delays in fund transfers that the banks explain by saying that it is necessary for them to go through security procedures and checks, during which time the banks seem to hold on to the money and benefit from the interest rather than either party to the transaction. One must live with measures such as that, but we would all find it unfortunate to see any increase in the burden. I would appreciate reassurance on those points, but we support the regulations.

Lord Myners: My Lords, like the noble Baroness, Lady Kramer, I have no issues of principle with this legislation. However, I would like the Minister's help on a couple of issues. The Explanatory Memorandum states that policy in the area of sanctions needs to be effective, proportionate and dissuasive. I would like the Minister to address Regulation 14(1)(a) and (b)

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and say whether the levels at which the penalties are set can truly be described as "dissuasive". Given the consequences of terrorist action, the proposed penalties appear to be quite modest. I would also like the Minister to explain the level 5 standard referred to in Regulation 14(2).

I would also like to know-this is a very important issue-why a proposed breach of Regulation 8(3) by a financial institution does not incur a criminal penalty. Why are financial institutions exempted from criminal penalties while individuals are subject to them?

I turn to Regulation 9(4)(b). Can the Minister explain the criteria employed by HMT in determining an appropriate publicity strategy, and how the licences will be publicised under the regulations-specifically, where and when?

Under Regulation 20(1), how many licences are currently issued under Regulation 7 of the Al-Qaida and Taliban (Asset-Freezing) Regulations 2010, and how many have been issued under the 2010 regulations since they were passed by Parliament?

Finally, it would be helpful if the Minister would confirm that legal aid will be made available to individuals who are subject to freezing orders. The consequences of these freezing orders are draconian and chilling. It is incumbent upon us to ensure that anyone threatened with the consequences of having their assets frozen has access to appropriate legal advice. Will the Minister confirm that that will continue to qualify for legal aid?

5.15 pm

Lord Davidson of Glen Clova: My Lords, first, I thank the Minister for introducing these regulations. Perhaps I may say immediately that this side of course supports the principle underlying these regulations, particularly as they substantially update, replicate and, to a degree, improve the regulations that were introduced by the previous Government on the same topic. Their purpose to keep in place protections for the UK against financing terrorist activity is wholly supportive. We also recognise the necessity of these regulations to maintain the UK's criminal penalties for breaches of the underlying European Council regulation.

In discussions regarding the predecessor 2010 regulations, a tangential concern was expressed about the UN processes in designating persons on the target list. While all the time recognising that the Council regulation on which these regulations are based does not merely require a replication of the UN target list, it nevertheless takes considerable account of it. I fully appreciate what the Minister has indicated by way of improved protections at the EU side but it would be interesting to hear from the Minister, following the discussions at UN level, what particular developments have taken place in enabling challenges to be made by an individual to their being placed on the UN target list.

I endorse the observations made by my noble friend Lord Myners in relation to the areas in which he seeks clarification. In conclusion, the Opposition support the balance that these regulations strike between security and liberty.

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Lord Sassoon: I am afraid that I did not quite catch the noble and learned Lord's question and I want to try to give him the service of an answer. His noble friend asked me lots of questions but since the noble and learned Lord asked only one, I want to make sure that I got it right. Perhaps he would not mind clarifying the question.

Lord Davidson of Glen Clova: It will be my pleasure. I was seeking clarification or explication of the processes which the UN employs for putting individuals on the target list and the way in which discussions by the UK Government at the UN level have improved the potential for challenge by individuals finding themselves on the UN target list. One fully appreciates that the UN target list is not simply replicated by the EU target list. It applies its own judgment in relation to these. But, given that the EU takes considerable account of what the UN does by way of placing individuals on the target list, it would be helpful to understand how a challenge might be made by an individual at the UN level. I appreciate that this is entirely tangential but it would be interesting to know as this matter has caused concern in the past.

Lord Sassoon: My Lords, I thank noble Lords very much for this focused short debate and for a number of questions which are absolutely to the point. Even though the noble and learned Lord says that his question is tangential, I do not think that it is at all. It goes to the heart of the UK's concerns to make sure that when the UN did its review of the regime leading up to June 2011 we made sure that there were additional proper protections. I might come back to that in a minute.

I am grateful that all noble Lords recognise the importance of these regulations but it is equally clear that we should get the details right.

In answer to my noble friend Lady Kramer's questions, I can certainly reassure her that absolutely nothing will slip through the gaps; there is nothing separating the old and the new regimes. We are putting in place something that ensures that there is a seamless continuation from the old combined resolution regime into the two separate regimes.

On whether there will be any additional burdens on ordinary people, I shall expand that to ordinary people and small businesses because it is important that small businesses do not have any additional burdens placed on them. Consistent with my previous answer, there should be no substantially changed burdens from the previous regimes. In fact, there has been some rationalisation of the drafting of the regulations in the process of coming forward with this new regulation. We continue to have a dialogue with representatives of small firms. I can reassure my noble friend on that. She also asked about the burden on people. It mainly will ensure that private individuals, who are in any way conceivably connected to this regime, have legitimate payments flowing to them. I believe that the regime will continue to ensure that that is the case.

I wondered why the noble Lord, Lord Myners, was writing away so furiously and I now understand that he was setting an exam paper for me.

Lord Myners: Pass.

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Lord Sassoon: I am very grateful that, notwithstanding the earlier start time of this business, my Box team was able to get here in good time. The first questions were important ones about the penalties in the regime. I believe that prison sentences of up to two years are dissuasive. We are picking up the penalties from the previous regime and they have, therefore, been considered in the past. On the specific question about level 5, the answer is that it is a £5,000 penalty.

The noble Lord, Lord Myners, then asked about Regulation 8(3) and why there is no criminal penalty on financial institutions. Regulation 8(3) is that which requires financial institutions to tell the Treasury when they credit funds to a frozen account. Indeed, there is no criminal penalty attached to failure to comply with that requirement. Any breaches of that requirement are, I would suggest, properly dealt with as part of the FSA's supervision of financial institutions for compliance with sanctions legislation, which is required under the Financial Services and Markets Act 2000, which provides a range of powers. Although the noble Lord is right to ask me the question, consideration has been taken of the link through to sanctions that are available under the FISMA regime.

The noble Lord then asked about publicity. If I understood his question correctly, general licences are all advertised on the Treasury website and so they are available to anyone who is interested. Those parties who are in any way involved in this or the other asset-freezing regimes are well aware, and have been for a number of years, of the channels through which the Treasury publicises licences and all other aspects of the regime. That continues, and the feedback that we receive suggests that the publicity mechanisms are effective.

There was a question about the number of licences that have been issued. The total number of licences that have been issued this year under both the Terrorist Asset-Freezing etc. Act and the al-Qaeda regime is 41. I do not have the exact split between the two regimes to hand but something of the order of a dozen were in respect of al-Qaeda designated individuals. If the noble Lord would like the exact number I would be happy to give it to him-he is shaking his head-but it is about a dozen out of 40.

Lastly, if an individual meets the normal legal aid tests then legal aid is available. These regulations have no particular impact on the availability of legal aid. It is perhaps also worth noting that legal aid is available from the European Court for challenges in respect of EU listings. Again, I believe there is no gap in the regulations. I hope that that deals with the questions asked by the noble Lord, Lord Myners.

The noble and learned Lord, Lord Davidson of Glen Clova, asked an important question about people getting on the list-and, I would suggest, being able to get themselves off it. Of course, in these and similar situations, getting people on the list will be a matter of some urgency. It is important that there is appropriate evidence and the UK is very concerned to see appropriate evidence produced in all the asset-freezing regimes, whether at a UN, EU or domestic level. I see cases under these regimes when they come forward and I know how seriously that is taken.

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The almost more important question is about the mechanisms for challenge and for getting people delisted if appropriate. What is significant about the new regime under Resolution 1989 is that we were able to get in place, as I described in my opening speech, a series of much better protections in terms of the review processes, the way that the ombudsman role is beefed up, and so on. I feel much happier that, just as in the legislation for our domestic regime last year we were able to put in additional and important protections, so in a different

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regime the UN has moved in that direction. It was something that the UK pushed hard for.

I hope that I have answered the questions that have been brought up. In conclusion, these regulations provide a framework to implement the Security Council regulation effectively and properly. It is critical to enabling the UK to play its part in both preventing terrorist financing and in meeting those international obligations. Therefore, I commend these regulations to the Committee.

Motion agreed.

Committee adjourned at 5.30 pm.

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