|Back to Table of Contents
|Lords Hansard Home Page
The Minister in another place, the honourable Mr Djanogly, stated in response to a query by my honourable friend Mr Michael Connarty as to how many cases there were that showed the failure of the system:
I raise that not to make some petty point but only to invite the Minister-who, if I may say so, I am delighted to see in his place as it seems a long time ago, perhaps about a year, since we last faced each other across the Dispatch Box; crossed swords is perhaps putting it too highly-to please go back and double-check whether there are any of those figures.
Lord Phillips of Sudbury: I cannot resist asking the noble Lord whether he would also class as a failure of the system the fact that more and more legal aid practitioners in immigration and asylum have withdrawn from the scheme altogether, because they tend to be concentrated in city centres and the current rates of remuneration for this work are such that they are simply not sustainable? As I say, I could not resist adding that to his catalogue.
Lord Bach: I cannot blame the noble Lord for asking an-ex Legal Aid Minister that question. In immigration law over the last 20 years or so-this has been hinted at already in contributions, and no one really can gainsay it-it was spotted that there were those who practised immigration law who did not do their profession any credit. Perhaps I might put it as cautiously as that; it is probably a good deal worse, frankly. The previous Government, with general support, therefore took steps, as the noble Lord, Lord Thomas of Gresford, reminded us, to make sure that the industry, as it were, became regulated. Thank goodness for that, but the rewards to be gained from doing legal aid work properly in this field are not very great. I have to concede that.
Will the Minister please double-check in the Ministry of Justice, which I know is not his department, whether any figures can be employed for the Government's case for taking these parts of judicial review out of
18 Jan 2012 : Column 618
Lord Wallace of Tankerness: My Lords, we have come to an important part of Schedule 1, relating generally to immigration, asylum, removal directions and judicial review, although the amendment moved by my noble friend Lord Carlile of Berriew was of much more general application to judicial review, which is an important part of our legal system, as he very clearly and eloquently set out. Amendment 54 seeks to disapply certain exclusions set out in Part 2 of the Bill for judicial review claims. It would appear to be aimed at ensuring that funding for judicial review is available for judicial reviews concerning, for example, breaches of statutory duty.
Our position is that we believe the amendment largely to be unnecessary, because the exclusions at paragraphs 1, 2, 3, 4, 5 and 8 of Part 2 of Schedule 1 are not intended to prevent funding for judicial review. Rather, the exclusions are intended to prevent the funding of, for example, tortious causes of action, typically for damages. While I hope that that would reassure, perhaps I can follow it by making it clear that our intention is to retain legal aid for most judicial review claims, including those relating to personal injury or death and breach of a statutory duty. I assure the Committee, and indeed my noble friend, that because we have obviously had representations on this point, we are actively and seriously considering whether in the light of this amendment and the points which my noble friend has made in moving it, we need to bring forward amendments of our own to clarify the position and to give proper effect to the intention.
Lord Carlile of Berriew: I am most grateful to my noble and learned friend. He has been extremely helpful. Can he clarify one point? Sometimes when judicial review claims are brought there is included in the claim a claim for damages, which can be awarded under judicial review. I take it from what he said that if a claim for damages is part of a judicial review, that part of the claim would also have legal aid available to it. It is one legal aid order.
Lord Wallace of Tankerness: This is quite important. As my noble friend will recognise, the overall structure of what is proposed to be in scope does not provide for legal aid for damages. However, I recognise what he says about damages being part of an overall judicial review claim. It is important that we look at this and ensure that what appears in the Bill delivers the intention. I am sure that we will return to this matter on Report.
My noble friend Lord Thomas of Gresford spoke to Amendments 55 to 59, which concern the exclusions from legal aid which we have made for some immigration
18 Jan 2012 : Column 619
My noble friend and the noble Lord raised the question of a lack of consultation. However, in response to our consultation on legal aid the Judges' Council of England and Wales highlighted the large number of immigration judicial reviews that were without merit. That point was raised in the consultation and my noble friend has accepted in speaking to his amendments that there are a number of unmeritorious cases taking up time. This change was made against that background. Although only a minority of those cases would currently receive legal aid, the Government's view is nevertheless that it is wrong in principle for such cases to remain within the scope of funding. We are therefore seeking to remove two classes of immigration judicial review from the scope of legal aid, again subject to certain exceptions which I will come on to discuss.
The noble Lord, Lord Bach, asked whether I would double-check the figures on taking these parts of judicial review out of scope. Of course we will double-check them, and if there is further information we will make it available not only to the noble Lord but to all those participating in our proceedings.
The first category of case that we seek to exclude is one where there has already been at least one appeal before the tribunal or another judicial review within the past year on the same or a substantially similar issue. The second category concerns judicial reviews of removal directions rather than the underlying immigration decision. Such proceedings are often brought at the last minute-sometimes literally as people are being put on to a plane. We recognise that there will be some genuine, if unusual, cases within these categories that could still warrant legal aid. That is why we have made exceptions to our proposed exclusions-if the Committee will bear with the double negatives, which seem to be quite frequent in this part of the Bill. These are intended to take into account the potential for changes in an individual's circumstances over time. In both categories, the exclusion is subject to a one-year time limit. We have also made exceptions for judicial reviews of decisions by the Home Office to certify under Section 94 or Section 96 of the Nationality, Immigration and Asylum Act 2002. These provisions curtail asylum appeal rights in certain circumstances and so maintaining legal aid for a potential judicial review is, we believe, an important safeguard.
We are therefore keeping judicial reviews of a decision by the Home Office to refuse to treat further submissions as a fresh claim for asylum. Again, this maintains the availability of legal aid for judicial review asylum cases where there may not have been an appeal to the tribunal. It has been suggested that most types of immigration cases will not be able to get legal aid, but most types of immigration judicial review will still be in scope. The provisions in the Bill remove only two
18 Jan 2012 : Column 620
On the specific amendments spoken to by my noble friend Lord Thomas, Amendment 55 seeks to keep all immigration judicial reviews within the scope of legal aid. From what I have said, noble Lords will see why the Government do not agree with that amendment.
Amendments 56 and 57 relate to the operation of the exclusion of judicial reviews on removal directions. The Government seek to exclude judicial reviews of removal directions from the scope of legal aid because there will already have been a chance to appeal the underlying decision. More specifically, Amendment 56 would in effect retain legal aid for these judicial reviews in circumstances where there had been no appeal of the original underlying decision, or at least no appeal before the removal had been effected.
It is true that some decisions to remove can be challenged only by appeal from overseas, as Parliament decided. While judicial review can still be used as a means of challenging this, it does not follow that legal aid should be available in all these cases. As I explained earlier, in asylum cases where there is no right of appeal or where, as in Section 94 cases, any right of appeal arises only outside the UK, legal aid will remain available for judicial review. However, we believe that choosing not to exercise this appeal right should not bring someone within the scope of legal aid.
Amendment 57 raises a technical point, as my noble friend recognised. It is based on the belief that the provision around the "leave to appeal" in paragraph 17(6)(b) is unnecessary because there is no provision to appeal to the First-tier Tribunal in these cases. However, there is a leave-to-appeal stage to the Upper Tribunal, so we think that the current drafting is sound, albeit that this is a very fine technical point.
The intention of Amendment 58, as I understand it and as was stated by my noble friend, is to avoid a potential definitional problem to do with the meaning of asylum across the 1951 refugee convention, the EU procedures directive and the qualification directive. Again, it is recognised that this is technical but of course important, and it is about the definition of protection cases-that is, non-refugee convention cases.
The Government understand the concerns but on balance we think that they are misplaced. Our view is that the reference in paragraph 17(7)(a) of Schedule 1 to an asylum application within the meaning of the EU procedures directive is sufficient to cover all applications for international protection. I am happy to put it on the record that that is our intention. However, the amendment goes further than the Government intend; it seems to provide legal aid in all judicial reviews connected with asylum matters, not just those where there has been no previous opportunity to appeal. I believe that it would be wrong to retain legal aid for judicial review cases that are very likely to be without merit, regardless of whether they are asylum cases. Nevertheless, I express my appreciation to my noble friend for raising this issue and regarding the specific points that he made, we will certainly look at whether anything further is required here.
Amendment 59 seeks to add two further exceptions to the exclusions. The first is to make an exception for cases that have not previously benefited from legal aid. I understand the logic: without legal assistance, someone may not have put the right arguments forward first time around, so when it comes to potential judicial review, should they not have legal aid to ensure that they get it right? Our response is that if legal assistance means that they can put new arguments forward-sufficiently new that the court or tribunal is considering a different issue-they would still be eligible for legal aid for the judicial review. This is because exclusion applies only where the judicial review is in respect of the same or substantially similar issue. However, if they are still raising the same or substantially similar issue, even with the potential benefit of a lawyer, we do not believe that they should be eligible for legal aid.
The second exception, as sought by Amendment 59, relates to cases where the appellants have been successful in their previous appeal for judicial review. We think that there is an issue here and we will certainly look at that.
I hope that we have given a satisfactory explanation. This is a technical matter but I do not for a moment deny that these are serious issues. In asking my noble friend Lord Carlile to withdraw the amendment in the light of the assurances that I have given, let me give him a further assurance. He asked whether judicial review funding would cover the damages remedy sought through the judicial review, and the answer is yes. If we can find the right words, we will give proper effect to our intention.
Lord Thomas of Gresford: Before my noble friend Lord Carlile replies regarding his amendment, I thank the Minister for his reply to my amendments, which raised difficult technical points. I hope that he will forgive me if I read what he has said with some care, as no doubt he will read the whole debate with some care. I look forward to seeing what technical amendments he may feel are necessary to deal with the points that I raised. I am also grateful to him for the assurances that he has given, certainly in relation to part of the amendments.
Lord Carlile of Berriew: My Lords, in relation to Amendment 54, I am grateful for the explicit support from the noble Lord, Lord Bach, on the opposition Front Bench. So far as my noble and learned friend's response is concerned, as he spoke, I reminded myself that when I was a young man and he was a very young man, we shared a flat for a period within the Division Bell area. When you have shared a kitchen with someone, albeit one in which the most used utensil was the corkscrew, you get to know who you can trust. I entirely trust my noble and learned friend and always have done. I am extremely grateful for his assurances; he answered very fully the concerns that I and the Bar Council felt about this issue. I look forward to returning to the matter on Report, with those assurances intact and enhanced. In the circumstances, I beg leave to withdraw the amendment.
Lord Ramsbotham: My Lords, the purpose of Amendments 60 and 61 is to ask the Government to rectify an omission that denies legal aid to those who have been unlawfully deprived of their liberty by the state and their ability to obtain redress through the courts.
The Government's consultation resulted in legal aid being denied except for cases that concern a significant breach of human rights-abuses of positions of power or claims arising from allegations of sexual abuse or attack. Abuse of power by a public authority-which is itself a position of power-is defined in paragraph 19 of Schedule 1 as an act or omission that is deliberate or dishonest and results in reasonably foreseeable harm to a person or property. Unfortunately, however, the extent of the meaning of the words "deliberate" and "harm" in the Bill is not defined. Unless it is, I fear that based on past experience, immigration authorities and police will continue to disregard unlawful or false imprisonment on the grounds that "deliberate" means something more than merely unlawful, and "harm" means injury.
Let me give an example of what I mean. A British man spent 19 months in an immigration detention centre pleading with the Home Office that he was British, but lacking the documents to prove it. His deportation appeal, for which he was unable to obtain representation due to the cuts in immigration legal aid, was dismissed. However, a solicitor gave him the benefit of the doubt and wrote to the Home Office saying that the onus was on it, as the detainer, to prove that the man was not British. Within two days of the letter, he was released. At this point, under the new proposals, no further legal aid would have been available because on the face of it, no harm-other than the loss of personal liberty for a period-had been caused by an inadvertent and honest mistake. However, after many hours of legal aid-funded work, evidence emerged of prolonged deceit on the part of the Home Office, resulting in substantial damages having to be paid.
Because bringing claims for unlawful deprivation of liberty under a conditional fee agreement is beyond most people's means now that legal expenses insurance premiums are no longer recoverable, most individuals placed in this situation have no means of gaining redress unless granted access to legal aid. Therefore, I am tabling both Amendment 60, which aims to make it clear that unlawful deprivation of an individual's liberty by the state is a serious abuse of power, and Amendment 61, which aims to make it clear that unlawful loss of liberty constitutes harm, in the hope that the Government will accept that there is justification for the provision of legal aid in such cases of abuse of power by the state. I beg to move.
Lord Berkeley: My Lords, I shall speak to Amendment 61ZA, which is in this group. It does not much relate to the amendments of the noble Lord, Lord Ramsbotham, but it raises an interesting issue to explore at this stage. It would include the Duchy of Cornwall or the Crown Estate as a public body under paragraph 19 of Schedule 1, to allow for those who believe that these organisations have abused their positions of power. My reason for tabling this amendment is the continuing uncertainty over the status of these bodies, which can be summed up by saying, "Are they private or are they public?". Are they accountable to Parliament and how do Ministers take into account the issues raised by them, including the numerous handwritten letters that they reportedly receive from Prince Charles, which must always remain confidential? There is a complete lack of transparency.
My attention was drawn to this because of a recent case before the First-tier Tribunal of the General Regulatory Chamber on information rights between someone called Michael Bruton and the Information Commissioner and the Duchy over allegations that the Duchy allowed an oyster-growing grid to be deposited in the Helford river in Cornwall-in what was reported to have been an SSSI-without carrying out the necessary environmental assessments. The question then arose of whether the Duchy is covered by the Environmental Information Regulations, and hinges on whether it is a public body. The Duchy's counsel said that,
I find that rather an extraordinary statement. We can debate what it means, but the tribunal's decision hinged on the definition of a public body. The tribunal found that the Duchy was a public body under the Environmental Information Regulations. Its judgment hinged on the fact that the Duchy is the harbour authority for the port of St Mary's in the Scilly Isles. The Duchy has appealed so we do not yet know the result.
It is interesting because, at the same time, I have a Private Member's Bill that is going through your Lordships' House rather slowly. I was told by the Clerks that I would have to ask the Minister to write to the Duchy to ask permission for the Bill to be taken forward because it affects the private interests of Prince Charles. Clearly, in this House it is believed that having an interest in a harbour is a private interest, whereas the information tribunal thinks that it is a public interest. There are around 120 harbour authorities in this country. I had to ask why the Minister had to write to just one and not the other 119 but that is probably something of an aside. There is a lot of uncertainty there. I do not know how Mr Bruton is funding the appeal or the original work but he certainly did not get legal aid. Perhaps that should have been considered.
I turn quickly to the Crown Estate. Noble Lords will be aware that the Treasury Sub-Committee in the House of Commons investigated the workings of the Crown Estate. Its report was the first for around 20 years and it was clearly frightened by some of the issues that came back. It is interesting that the Government have recently changed the method of funding the public activities of Her Majesty by going back to pre-George III times and agreeing to give 15 per cent of Crown Estate revenue. However, they cannot tell
18 Jan 2012 : Column 624
This uncertainty, coupled with the fear of some people and the unwillingness of the Government to subject the Duchy and the Crown Estate as public bodies-if that is what they are-to proper scrutiny, is a major hurdle for anyone willing to take them on in the courts. That is probably what is intended but it is unfair. It seems that these bodies decide whether they are public or private as it suits them in particular cases, which is all wrong. Therefore, there is very little precedent and, no doubt, much higher costs for any appellant. I will be very interested to hear what the Minister has to say about this. Does he believe that it would be equitable for legal aid to be available in such cases? Alternatively, or additionally, will the Government set up a review of what is private and what is public in these cases to produce some clarification and transparency, so that everyone who has to deal with these organisations knows where they stand?
Lord Phillips of Sudbury: My Lords, I shall speak in favour of Amendment 60, for which the noble Lord, Lord Ramsbotham, has made a strong case. I expect the Minister may say that, ipso facto, an abuse of power is unlawful. The problem is that if that is the argument, the way that sub-paragraph (6) is drafted apparently provides a complete definition of the phrase "abuse of power" in the context of paragraph 19, and the totality of that definition is in sub-paragraph (6)(a) and (b). It seems necessary to include the word "unlawful" although, as I say, it seems manifestly obvious that any public authority acting unlawfully is, by definition, abusing its power.
I would also be grateful if the Minister could tell us whether the word "deliberate" here means the same as "intentional". I rather assume that it does, but some explanation is needed of why the normal terms-"intentional" or "with intent"-have been changed in this instance to "deliberate". Does the definition as drafted exclude the careless exercise of power on the part of a public authority because there is a difference between a reckless or careless exercise of power and one that is deliberate or intentional? I hope that the noble Lord will refer to those points when he sums up. As I say, I am happy to support this amendment.
Lord Howarth of Newport: I, too, would like to say a word in support of the amendments tabled by the noble Lord, Lord Ramsbotham. He has raised very important points. Surely, what he has argued for is self-evidently right in principle. As the noble Lord suggested, public authorities are almost by definition powerful in relation to citizens. It is, of course, incumbent on all public authorities to act lawfully. Ignorance of the law on the part of a public authority should be no excuse for that public authority any more than it is on
18 Jan 2012 : Column 625
Amendment 61 in the name of the noble Lord, Lord Ramsbotham, is also very valuable. From time to time a number of us may be rather concerned at the readiness and apparent arbitrariness with which people seeking immigration status can be detained. It must be beyond question that deprivation of liberty, whether or not it was deliberate or dishonest, is a harm. Therefore, it is surely right that the two amendments that the noble Lord has proposed should go in the Bill. They make evident good sense and they are proper.
Lord Judd: My Lords, I, too, commend this amendment for very serious attention. In the economic pressures under which we are operating and which are very much a factor in everything we are considering under this legislation, it seems to me that this provision is another example of a heavy penalty falling on the most vulnerable and those in the worst possible psychological situation. Sometimes we need to break away from our legal preoccupations and think of the predicament of the individual. They go through an extraordinary nightmare in many of the circumstances that we are discussing. We are discussing an authority of the state doing something which is a denial of everything that the state says it is about. In our immigration and other policy, we expect people to give undertakings and to prove that they understand the culture of our society and why it matters. Here is a provision which is an absolute denial of what this country is about-the deprivation of liberty. I would have thought that if we realised such a thing had happened, we would fall over backwards to put it right and to give a positive indication of our disapproval of what had happened and our sympathy for the individual concerned.
I hope that I may be allowed to make a wider point. I sometimes think that in our preoccupation with specific legislation we fail to make connections. All the time we are worried about stability, terrorism and the appeal of extremists. However, this kind of thing plays into the hands of agitators who portray these issues as examples of the hypocrisy of our society. It is hypocritical for an agent of the state to do something that is a denial of what the state is about and for the state to give no assistance in making sure that the wrong is put right. A terribly important principle has been raised in this amendment.
Baroness Howe of Idlicote: My Lords, my name is attached to Amendments 60 and 61 which were spoken to by my noble friend Lord Ramsbotham. Having listened to the contributions that have been made, it is
18 Jan 2012 : Column 626
The Earl of Sandwich: My Lords, I am not sure whether this is the appropriate amendment, but having had some experience of immigration and immigration detention I just wanted to make one point. I know that we are coming on to issues related to that. I declare an interest as a patron of visitors to Haslar detention centre in Portsmouth.
Like others, I understand that the protection of liberty is one of the primary factors in the allocation of legal aid. Yet the advice I have received is that this Bill will fall heavily on the most vulnerable people in our society-asylum seekers and those in detention who are awaiting removal to their home country. In many cases, it will mean that a vulnerable person, perhaps a victim of torture and perhaps as young as 16, will be unable to present their case without access to any formal representation and whose legitimate cries for help under international asylum law will simply be unheard. Applications for bail will be refused even more often than they are today simply because of the lack of legal aid and proper representation, if I have understood the situation right.
I well understand that the Minister has to defend the Government's position in difficult times but I would like some reassurance that the test of vulnerability under this legislation will be reasonable. Perhaps he could explain how it will conform with international human rights law.
Lord Beecham: My Lords, I rise to deal with the amendments in this group, one of which, Amendment 90ZZA, is in my name and that of my noble friend Lord Bach. It might be thought odd that that amendment is included in the group we are discussing, but I will deal with that later.
I wish to deal first with the amendment spoken to by my noble friend Lord Berkeley. I suppose that it can only appropriately be described as an original amendment as it relates to the Duchy. However, it raises an interesting constitutional point which needs to be explored, although, it may be thought, probably not in the context of this Bill. The noble Lord raises a legitimate concern and he is not responsible for the grouping. The matter does not fall entirely within the purview of the group that we are discussing and perhaps not of the Bill, but no doubt those matters will be addressed in some other way at an appropriate time.
I wish to touch briefly on the government amendments which are wholly uncontroversial and entirely acceptable to the Opposition. The Minister may not offer a detailed description of those amendments as they speak for themselves.
We certainly support Amendments 60 and 61, which were spoken to so ably by the noble Lord, Lord Ramsbotham. We entirely agree with him that we need clarity as to what constitutes harm for the purpose of
18 Jan 2012 : Column 627
The noble Lord who moved the amendment properly referred to immigration. In a briefing provided by Bail for Immigration Detainees, the point is made that the Bill does not define what "deliberate" or "harm" mean. It expresses concern that the ministry will seek to interpret "deliberate" as more than unlawful, and "harm" as injury, and that that would result in the exclusion of many claims for damages for unlawful intention or false imprisonment brought by individuals who lost their liberty as a result of unlawful acts by the immigration authorities or the police. In that event, it is quite unrealistic to suppose that without legal assistance such claimants could properly make their case. No doubt, the Minister will clarify the intention of the Bill in that respect.
However, these matters are not necessarily confined to immigration cases. There might well be other cases in which liberty might be lost, arrests made and people detained-for example, under the auspices of defective warrants. It may be that arrests are unlawful on the grounds that the requirements of the Police and Criminal Evidence Act were not observed, where the actions of officers were unlawful but were not thought to be deliberate. Other cases might arise out of breaches of the Data Protection Act, where a disclosure might wrongfully be made about someone who, for example, alleged that he had a criminal record when that was not the case and damage might be occasioned. Another example might be where someone in custody, either in a police station or prison, might be assaulted by someone else simply because of the negligence of those operating the facility in question. I should not imagine that the Government would seek to exclude the provision of legal aid in those cases.
Amendment 90ZZA refers to a rather different set of circumstances-in fact, an entirely different set of circumstances-that bring into play the position that might arise in the Court of Protection. On an earlier amendment, we heard the noble Lord, Lord McNally, restraining his glee at pointing out the defects in amendments moved by the noble Lord, Lord Thomas, and supported by me, on the applicability of Court of Protection proceedings. However, this amendment relates to a different case. It seeks to insert "mental or psychological" harm, in addition to physical harm, into paragraph 4 of Part 3 of Schedule 1, relating to,
and some other matters. However, physical safety is not by any means the be-all and end-all, and there are
18 Jan 2012 : Column 628
Lord Clinton-Davis: I am concerned about the position of the Official Solicitor. Would he not be inhibited from acting at all in certain instances? Therefore, the vulnerable person concerned would be exposed to increase vulnerability.
Lord Beecham: That certainly must be a risk, and the need for the assistance of the Court of Protection is therefore enhanced. I am grateful to my noble friend for allowing that point to be emphasised. It is therefore essential that legal aid is available so that the court can be approached and the Official Solicitor can represent the person in question. Otherwise, he would be unable to do so because there would be no provision for costs.
I hope that despite the odd location of our amendment the Minister might look at it with some sympathy, and that if he cannot come to a conclusion on it, given that it was tabled very late, he will at least agree that he will take this matter back to look at before we reach Report.
Lord Wallace of Tankerness: My Lords, I thank the noble Lord, Lord Ramsbotham, for introducing this group of amendments. Arguably, there is nothing more fundamental for a parliament to discuss than the relationship between the state and the citizen. His amendments have given rise to an important debate, with contributions from my noble friend Lord Phillips, the noble Earl, Lord Sandwich, and the noble Lords, Lord Judd and Lord Howarth. I hope that I can reassure Members of the Committee in my response.
Amendment 60 seeks to make civil legal aid available for claims in relation to any alleged unlawful act by a public authority that causes reasonably foreseeable harm. In general terms, Schedule 1 makes legal aid available for the most serious cases and for proceedings that seek to hold public bodies to account for their decisions. This includes civil legal services for judicial review of an act, decision or omission, and provides a means for people to challenge the lawfulness of a public authority's actions on public grounds.
In terms of private law claims primarily for damages, while we consider that such claims do not generally justify funding, an important exception to the rule provided for in the Bill is for the most serious claims against public authorities. The Bill ensures that funding may be made available for tort and other damages
18 Jan 2012 : Column 629
is intended to cover the most serious misuses of state power. That is why it is defined in the Bill as an alleged act that is deliberate or dishonest, and that causes reasonably foreseeable harm to a person or property. Our definition would exclude from scope a range of less serious cases against public authorities-a point made by my noble friend Lord Phillips-including simple negligence claims such as "slipping" or "tripping". He asked if "deliberate" abuse of position or power is the same as "intentional". The answer is yes. As to the point raised by the noble Lord, Lord Beecham, who asked whether "deliberate" referred to a deliberate act or deliberate consequences, the word refers to the act or omission that is complained of and for which legal aid is sought. Legal aid would therefore be available for deliberate or dishonest acts or omissions by a public authority that cause reasonably foreseeable harm.
Amendment 60 would widen the scope of paragraph 19 of Part 1 of Schedule 1 to make legal aid available for claims in tort or other damages claims for any alleged unlawful act by a public authority that causes harm. Noble Lords will be interested to know that unlawful acts are already covered by paragraph 19, which covers situations where an act is deliberate and dishonest, and results in foreseeable harm. However, the concern is that the amendment as tabled would widen the coverage beyond what we believe should be within scope.
Alternatively, public law challenges to the lawfulness of a public authority's action can be brought by judicial review, which is in scope under the Bill. We have focused limited resources on those who need them most and the most serious cases, in which legal advice or representation is justified. I accept that that approach means that public funding will not be available for each and every claim involving a public authority, but it is intended to be available for the most serious cases and to address serious abuses.
Specifically, the noble Lord, Lord Ramsbotham, highlighted the important issue of the loss of liberty. He seeks to amend paragraph 19(7) of Part 1 of Schedule 1 to specify that harm includes loss of liberty. Currently, paragraph 19 provides for civil legal services to be provided in relation to abuse by a public authority of its position of power. That allows, typically, for damages claims to be funded for the most serious claims against public authorities.
Paragraph 19(6) provides that an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission is deliberate or dishonest-we have already indicated what is intended by deliberate-and results in harm to a person or property that was reasonably foreseeable. Paragraph 19 already covers the situation where the harm suffered by an individual results in the loss of their liberty, as
18 Jan 2012 : Column 630
By way of illustration, paragraph 19 would allow for legal aid to be provided for a person to bring a false imprisonment claim where they had been unlawfully detained by a public authority and the actions of the authority were deliberate or dishonest. Noble Lords should note that legal aid may also be available for bringing claims in relation to a loss of liberty such as false imprisonment claims under paragraph 20 of Schedule 1, providing that the act of a public authority involves a significant breach of convention rights. It also retains within scope legal aid for other means of challenging detention or loss of liberty. For example, civil legal services provided in relation to a writ of habeas corpus have been retained in scope under paragraph 18. Public law challenges to the lawfulness of a public authority's actions could be brought by judicial review, which is in scope under paragraph 17. The Bill also allows for the provision of civil legal services in relation to immigration detention, including bail applications. I hope that that gives some reassurance to the noble Earl, Lord Sandwich, and the noble Lord, Lord Beecham, who raised that matter. That is available under paragraph 22.
Lord Avebury: Although paragraph 26(1)(a) allows claimants to be granted legal aid in respect of asylum, it does not extend to the families of refugees who seek to rejoin the principal member of the family in the United Kingdom. Anxiety concerning that omission has been expressed by the UNHCR. Can my noble and learned friend say anything on that?
Lord Wallace of Tankerness: It is an important point, which has been raised before in the context of the Bill. I think that Amendments 69 and 71 in the name of my noble friend Lord Thomas of Gresford-to which we will come, dare I say, sooner rather than later-raise the point about families of asylum seekers. I hope that when we come to that, we will have a proper debate on the important issue that my noble friend raises.
Lord Howarth of Newport: The Minister is defending the Bill's drafting against the proposal of the noble Lord, Lord Ramsbotham, in Amendment 60. Is he therefore saying that if someone is the victim of a mistake by a public authority-not a deliberate mistake or one dishonestly intended but none the less an egregious error arising from ignorance of the law, which ought to be known by the people working in the public authority-there is to be no legally aided redress for the citizen, even if the harm is considerable?
Lord Wallace of Tankerness: As I said to my noble friend Lord Phillips, the Bill does not include negligent actions of a public authority. I made very clear that it is intended for the serious-end range of abuse of power and the harm that results. It is not intended to include all that lies by way of negligence.
Lord Phillips of Sudbury: I am sorry to interrupt the Minister's flow, but this is a valuable opportunity to get to the bottom of this. From what he is saying, a reckless act on behalf of the state would be neither deliberate nor dishonest. If it was reckless, there would be no redress. Can that be right?
Lord Wallace of Tankerness: My noble friend well knows that where recklessness goes into intent is not always very clear. I very much hear the point that he is making; I want to reflect on it. There is a continuum, but I have made it clear that it certainly does not include negligence. That is why we are concerned about "unlawful", because that opens the provision beyond what is intended and could lead to cases of damages for what are not by any stretch of the imagination serious consequences or serious harm for the individual.
Lord Neill of Bladen: On Paragraph 19(6), the Minister said that the word deliberate would not cover negligence. What is a deliberate act intended to cover? Most people, when they do things, do them deliberately. Is that what it means, or anything beyond that?
Lord Wallace of Tankerness: As I said earlier, when my noble friend asked whether deliberate meant intentional, that is what it means: it is an intentional act of a public authority. The question is: if it is a mistake that leads to considerable harm but is not deliberate or dishonest, will legal aid not be available? I hope that I have indicated that no, under paragraph 19 it would not be available but, as I said, paragraph 20, which covers a significant breach of human rights, might nevertheless allow for funding in those circumstances, or cases might be taken forward by way of judicial review, which might be available for funding.
There is a range of provision in Schedule 1 for cases to be taken forward against public authorities, not solely on the particular part of the schedule to which the amendment of the noble Lord, Lord Ramsbotham, is directed.
Lord Mayhew of Twysden: We quite understand the point that the noble and learned Lord is making: that the intention of Ministers is to restrict legal aid to serious cases and that that is the measure. Would he reflect on the position of someone whose liberty has been wrongfully denied and whether it would be any consolation to know that that resulted not from a deliberate act but from some oversight-a mistake, to use the words already employed, of an egregious kind? It does not seem to me that it makes much difference, if you are unlawfully detained, whether it was just by mistake.
Lord Wallace of Tankerness: I recognise what my noble and learned friend is saying. I said at the outset that we intend to focus on those areas where there is serious abuse by the state and where serious harm has resulted. It is an effort to target limited resources-I think that there is recognition that resources are limited-where there is the greatest abuse of power or position by the state. In those circumstances, we believe, as I have tried to explain, that abuse does not cover negligence.
18 Jan 2012 : Column 632
Lord Bach: Why should it be only the most serious abuses that allow the victim to get legal aid? There are all kinds of abuses. We know that there are some petty abuses and perhaps I would agree with the Minister that not every petty abuse should allow the victim to get legal aid. There are very serious abuses, which the noble and learned Lord says his Bill intends to cover, but what about medium-sized abuses? I am talking about abuses that are pretty severe for the victim. Should the state be stopped from dealing with those? Why should the victim not be able to get legal aid in order to get a remedy in such a case? Why are the Government saying that the abuse has to be really serious?
Lord Wallace of Tankerness: My Lords, as I have sought to explain, we are trying to recognise in the Bill that there are limited resources and to ensure that those limited resources are best and most fairly targeted. I think that in asking the question the noble Lord, Lord Bach, accepted that not all abuse should lead to a claim. That is what we are seeking to do: we are trying to strike a balance between where it would and would not be appropriate for legal aid to be made available. That is why, along that continuum, it is at the serious end where we have sought-
Lord Clinton-Davis: Did the Minister really say that in no circumstances would legal aid be available where the infringement immediately appeared to be minor? Does he not recognise that lawyers often come across cases that appear to be minor but later become rather more serious? What remedy is available in such an instance? Is the Minister really arguing that, once it is decreed that a situation is minimal, there is no possible remedy?
Lord Wallace of Tankerness: It is not that there is no possible remedy; it is a question of whether legal aid would be available-whether it is within scope. I do not shy away from the fact that these are difficult judgments to make, but the resources are not unlimited. The noble Lord, Lord Clinton-Davis, refers to a minimal infringement. If the resources are limited, it is very difficult to see why a minimal infringement, which may be one of error, should attract the same level of resources as a case where there has clearly been a misuse or abuse of power on the part of a public authority.
Lord Clinton-Davis: I am talking about the solicitor who originally investigates a case being not very competent. He concludes that the case is minimal but he might be wrong. Why should legal aid not be available later?
Lord Wallace of Tankerness: I am not sure that I fully understand the point that the noble Lord is making. Obviously, if at a later stage a case clearly qualifies for legal aid under the definition here, one would expect legal aid to be available. Furthermore, in
18 Jan 2012 : Column 633
Lord Beecham: I am sorry to intervene and I am grateful to the Minister for giving way. Are the Government approaching this matter as though it is to deal only with claims for damages? Of course, other forms of relief might be sought-injunctive relief, declarations and so on-that might bring a spotlight to bear on the alleged abuse that has occurred. That might be the most powerful way of dealing with the error in the first place. Is that not something for which legal aid should be available?
Lord Wallace of Tankerness: My Lords, I have tried to identify the other parts of Schedule 1 where other remedies are indicated to be within scope. If I can find the place in my notes, I shall be able to make them very clear. I think I made it clear that judicial review, referred to in paragraph 17 of Part 1 of Schedule 1, is within scope of legal aid. I entirely agree with the noble Lord, Lord Beecham, that there may be many cases where that is the most appropriate route to go down and it would be within scope. However, I have indicated that, where damages are concerned, the criteria that I have tried to set out are the ones that would apply at the serious end of abuse. I gave specific examples of things that are within scope within the schedule, judicial review being possibly the most obvious.
Lord Howarth of Newport: Will the noble and learned Lord consider very carefully whether he is really content that through the Bill the Government are in effect carving out a significant area of immunity for their agents where they might have acted incompetently or irresponsibly-not deliberately or dishonestly but incompetently and irresponsibly-and, in so doing, have caused considerable damage to individuals? In stipulating that legal aid should not be available to enable individuals to secure redress and damages in such a situation, surely the Government are acting to protect themselves in a way that is simply wrong when one considers what the proper relationship between the state and the individual should be.
Lord Wallace of Tankerness: My Lords, at the risk of repetition, I have already said that numerous routes within scope, other than a damages claim, might be open to an individual and might be even more appropriate in addressing the situation where a public authority or the state acts in a way that the individual citizen wishes to challenge. Indeed, as I have indicated, other means, such as conditional fee agreements, might also be appropriate in some cases that are not at the serious end.
Lord Wallace of Tankerness: Part 1 of Schedule 1 indicates a number of remedies that are available and within scope. We have sought to make available a range of remedies, particularly with regard to the protection of the liberty of the subject. A deliberate policy choice was made to try to ensure that legal aid would be available to safeguard the liberty of the subject. No doubt the noble Lord, Lord Judd, is being patient.
Lord Judd: I am very grateful to the Minister for giving way. He is being given quite a cross-examination at this stage in our considerations. Before Report, when he is considering what has been said in this debate, I plead with him to remember that this is not just a private matter between the individual concerned and the authorities. In this very sensitive area of public policy there are bound to be much wider ramifications. Ultimately, this is about the credibility of the Home Office and its policies and how they operate. If there appears to be a reluctance to put right generously what has been done indefensibly, that will hardly help to achieve public confidence in the general policies as they are applied. I hope that the Minister will take away that general point, because it is crucial to our deliberations.
Lord Wallace of Tankerness: I recognise the important point that the noble Lord, Lord Judd, makes. I assure him that, in trying to allocate limited resources, we have sought to ensure that a proper balance is struck. As I indicated, it is of course a balance, and we will weigh in what has been said in this debate. However, I have sought to indicate that we are dealing here not just with claims for damages; we have deliberately included a whole range of remedies within scope in Schedule 1 because we recognise the importance of proper safeguards in the citizen's relationship with the state. I hope that the noble Lord will recognise that a whole range of remedies will be eligible for legal aid.
The noble Lord, Lord Berkeley, has no doubt been waiting for a response to his Amendment 61ZA, which would include within the definition of "public authority" the Crown Estate and the Duchy of Cornwall. The position is that paragraph 19(7) uses a definition of "public authority" that is used in Section 6 of the Human Rights Act 1998. At Section 6(3) of that Act, the definition of a public authority includes,
Therefore, the point is that this is not so much about the name of the body but about determining whether the function is of a public nature. It is the nature of the service or function that is determinative, rather than the legal status of a body that is performing the function. One noble Lord asked whether we could
18 Jan 2012 : Column 635
The noble Lord, Lord Beecham, said that there may be another time and place to discuss the Crown Estate and the Duchy of Cornwall. I know that the Scottish Affairs Committee in the House of Commons is currently looking at the work of the Crown Estate. It is an issue that has attracted more attention, but as regards this amendment and this Bill the definition is used in the Human Rights Act and is a proper definition to import into this Bill.
I will briefly address a number of government amendments in this group. Amendments 79A and 79C address predecessor claims under the pre-Equality Act 2010 legislation to ensure that legal aid continues to be available to people who have live claims under predecessor equalities legislation, and not just in relation to a contravention of the Equality Act 2010.
At present, paragraph 38 of Part 1 of Schedule 1 limits legal aid cases to cases where the Equality Act 2010 has been contravened. The 2010 Act presents a new unified legal framework for addressing harassment, victimisation and discrimination based on any of eight protected characteristics. Where previous equality enactments have been repealed, we recognise that certain claims will continue to be capable of being brought under these enactments by virtue of the transitional arrangements introduced by the 2010 Act. For this reason, we seek to amend paragraph 38 to allow funding for predecessor claims that might still need the benefit of public funding. This amendment will also amend paragraph 38 to put beyond doubt our intention to retain funding for civil legal services relating to the breach of equality clauses and rules and non-discrimination rules.
Government Amendments 78C, 78D and 78E ensure that civil legal services are provided in circumstances where a sexual offence has actually been committed or is alleged to have been committed. They also ensure that civil legal services are provided in circumstances where a sexual offence has not actually been committed but there has been: an incitement to commit a sexual offence; an offence committed by a person under Part 2 of the Serious Crime Act 2007, in relation to which a sexual offence is the offence which the person intended or believed would be committed; conspiracy to commit a sexual offence; and an attempt to commit a sexual offence.
Additionally, the amendment to paragraph 34 of Part 1 of Schedule 1 will ensure that civil legal services are capable of being provided in relation to conduct that would be an offence mentioned in sub-paragraph (3)(a) or (b) of the existing definition of "sexual offence" but that is not considered an offence under the present definition because it took place before the relevant provision came into force. At present, paragraph 34 limits legal aid to cases where a sexual offence has been committed under the provision of the Sexual Offences Act 2003 and to cases where an offence has been committed under Section 1 of the Protection of Children Act 1978, which deals with indecent photographs of children. We recognise that it is possible that offences committed before the present legislation
18 Jan 2012 : Column 636
I am not sure why Amendment 90ZZA is in this group, but I hope the Committee will recognise that this is a serious attempt to ensure that where there have perhaps been gaps due to prior legislation, we seek to fill them. Amendment 90ZZA would bring into scope advocacy within the Court of Protection where a person's mental or psychological safety is concerned. This echoes debates on Amendment 53. The current position is that advice is available for any mental capacity matter and that representation is available for the Court of Protection in limited circumstances where there is to be an oral hearing and the case will determine the vital interests of the individual.
Paragraph 4 of Part 3 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual-for example, medical treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, and the capacity to enter into sexual relations or the right to family life. The amendments go beyond what is currently provided through legal representation by the civil legal aid scheme. We have had to focus our limited resources on the most serious cases and on the interests of the individual that are vital. We do not seek to go beyond what is already the present position. I hope that the noble Lord will reflect on that and, when the time comes, not move his amendment.
It is some time since the noble Lord, Lord Ramsbotham, moved his original amendment, but I hope he is assured that the serious issues involving state public authorities and the citizen are addressed by this. With regard to the liberty of the individual, there are a number of specific provisions, quite apart from the more general provision that loss of liberty is seen as a harm to the individual. I hope, on the basis of these reassurances, that the noble Lord will withdraw his amendment.
Lord Ramsbotham: My Lords, I am very grateful to the noble and learned Lord for summing up in a very complicated summing-up situation. I am also extremely grateful for the many powerful interventions that were made both immediately after the amendment was moved and during the Minister's summing up. I think that their content has increased understanding and has pointed out many more aspects of the problem than I was able to point out in moving the amendment. Some very serious points have been raised and I think it behoves us all to read very carefully in Hansard what has been said in the House this evening. I think and I hope that it will be possible, having done that, to have a discussion with the Minister and with the officials concerned with this issue before we bring it back on Report. Issues involving people who are in the hands of the state should not be allowed to be dropped until we are absolutely certain that the legislation is clear and protects the most vulnerable who are up against the state. Meanwhile, I beg leave to withdraw the amendment.
Baroness Harris of Richmond: My Lords, the intent of my Question is to ensure that we do not forget about Northern Ireland and to remind the House that this is still a work in progress. We have a responsibility to ensure that a politically devolved Northern Ireland remains committed to transformation of its society. We spend a great deal of money-£14,000 million, or £14 billion-to help it through this process and it is important that we keep ourselves informed about progress. Since the 26th and final report from the Independent Monitoring Commission for Northern Ireland was presented to the House in July last year, a number of extremely violent incidents have occurred there. Although everyone must be relieved that the appalling terrorist activity has apparently come to an end, it has not completely disappeared and we must be vigilant about any recurrence.
I believe that the IMC has done a fantastic job. It was set up five years after the signing of the Belfast agreement, at a time of great turmoil in Northern Ireland. There was no real political agreement on a way forward and there was a continuing atmosphere of mistrust between political parties. As the report recognises, at the time that the IMC was set up paramilitary groups had not decommissioned their weapons and, although generally not attacking the organs of state, they were still engaged in illegal and often violent activity. Some also had strong links to political parties. Article 3 of the terms of the agreement stated that the IMC was set up,
It had a very difficult task to perform. During its time it reported on abductions, murders, violence of a terrible nature, robberies on a grand scale-most notably that of the Northern Bank in Belfast-and ongoing feuds between paramilitary organisations.
As well as its six-monthly paramilitary reports, the IMC produced a number of ad hoc reports on various initiatives that it had undertaken, either on its own or at the behest of the Irish and British Governments, and the progress evident through these reports is remarkable. They chart the steady progression towards a normalised society. All those concerned with the IMC over the years are to be warmly congratulated on their work, bravery, dedication and commitment to the building of the very different Northern Ireland that we see today, some seven and a half years since they began their task. I pay particular tribute to my noble friend Lord Alderdice, who is unable to be with us tonight and who was a member of the IMC throughout its term of office.
The IMC's work must, at times, have been utterly gruesome. Covering a land area not much bigger than that of my home county of North Yorkshire, Northern Ireland had four paramilitary murders and more than 200 brutal paramilitary shootings or assaults in 2005, a year after the IMC started its work. In the seven years since, there have been 21 murders and more than 800 reported casualties of paramilitary violence and a resurgence of serious violence by dissident republicans. Can the Minister tell me how many paramilitary-related incidents have taken place since the IMC's last report was published? How many incidents classed as violence have occurred in Northern Ireland in the past six months, and how does that compare with the preceding six months?
I was privileged last year to meet some of the victims of these crimes. They were cared for and supported by an extraordinary organisation called WAVE, led by a young man called Alan McBride. The organisation offers support to people bereaved of a spouse as a result of violence in Northern Ireland. I met many other truly inspirational people who are doing a marvellous job helping those afflicted as a consequence of the Troubles. My programme was organised by the Northern Ireland Human Rights Consortium, to which I owe a huge debt of gratitude for showing me the magnificent work done by these groups. They all work tremendously hard in desperately deprived areas of Belfast, which we must visit if we are to understand the difficulties that organisations face in their efforts to support those in most need.
"Members and former members of all paramilitary groups remain very active in non-terrorist types of crime-a bequest from the Troubles which will dog Northern Ireland for years and will require a substantial continuing effort from law enforcement agencies".
Perhaps I may ask the Minister how many PSNI officers there are now compared with six months ago, and whether it is the Government's assessment that these numbers are sufficient to ensure the safety of the people of Northern Ireland.
We should never forget how far we have come since 2004, when there were still more than 14,000 British troops in Northern Ireland, occupying 24 bases in an area-I remind your Lordships-not much greater than that of North Yorkshire. Army personnel were based in 13 police stations, and nine sites were used for observation and communications. For 38 years there had been a regular military role in law enforcement-the largest in British military history so far-and the IMC clearly had a huge role in helping Northern Ireland overcome the terrible years of mayhem, when it seemed to many that there would never be peace. However, much still needs to be done and the Secretary of State has promised regular six-monthly reports to the House about progress towards a shared future. Is the Minister able to confirm that a report will be presented shortly?
My sincere hope is that there will be much more integrated education to enable the young people of Northern Ireland to live together, respecting each other's cultures, instead of being separated as they have been for too long. I pay tribute to the tireless work of the noble Baroness, Lady Blood, who has
18 Jan 2012 : Column 639
"In our view, Northern Ireland should now address its continuing issues by conferring full responsibility on its own political and other institutions. ... Paramilitary violence is still a real issue. Dissident republicans are an active and serious threat, especially at the moment against members of the PSNI. ... Loyalists ... have yet to inspire confidence that they are capable of finally going away as paramilitary organisations, as PIRA has. Some members and former members of all groups remain heavily involved in a wide range of serious crime ... presenting a challenge to law enforcement which is significantly more serious than it would otherwise have been. ... Northern Ireland's political and other institutions, and the UK Government in respect of national security, therefore have a heavy continuing responsibility to complete the process whereby paramilitary groups finally cease to play a part in society. That responsibility goes wider, to the communities in which paramilitary groups still play a role. ... There are some in those communities who have to learn that paramilitary groups hold back their social and economic development and that only by rejecting them and whole-heartedly supporting public and voluntary institutions and the rule of law can they fully throw off the bequest of the Troubles. ... The main responsibility for dealing with these challenges rests with the Assembly, the Executive and local politicians, working in conjunction with community leaders, churches, the law enforcement and other public institutions, and ultimately with the people of Northern Ireland as a whole. ... It is this inclusive leadership which must now jointly guide Northern Ireland along the rest of the road".
Baroness Garden of Frognal: My Lords, perhaps I may point out that the timing on this debate is very tight. The minute the clock shows that five minutes have elapsed, noble Lords should sit down; otherwise, other noble Lords will be denied their chance to speak.
Lord Trimble: My Lords, I congratulate the noble Baroness, Lady Harris of Richmond, on securing the debate. I also congratulate the four persons who have been commissioners of the Independent Monitoring Commission over the past seven years, and thank them for the excellent job they have done.
Perhaps I may be permitted some purely personal reflections. It was my colleagues and I, during my time as First Minister of Northern Ireland, who suggested to the Government that such a body should be created. We did this in more specific terms, saying that as we had an oversight commissioner for the police and one for the justice system, we should have one for paramilitarism. The proposal evolved somewhat after it was originally made. I am sorry to say that when we put it to the Government we encountered fierce resistance from the Northern Ireland Office. Indeed, I remember a very senior member of the Northern Ireland Office saying to me that he was not going to have some other person overseeing what he did. He was quite right to have that concern because, while one put the proposal in terms of having independent reportage and oversight of what paramilitaries were doing, the whole object of the proposal was to try to curb the behaviour of the Northern Ireland Office, which unfortunately at times was not satisfactory. Respect for the Northern Ireland Office hit bottom when a Secretary of State for Northern
18 Jan 2012 : Column 640
It took quite some time before the concept was formally announced in, I think, July 2002. A few months before, there was a crisis that resulted in the suspension of the Northern Ireland Assembly, and I have always felt that if we had had this body in existence before then, we might very well have avoided that collapse and the consequent nearly five-year hiatus in the institutions in Northern Ireland. But it came, and it had a very positive effect.
I do not want to try to go over all the detail, but I must say that my eye was caught by a sentence on page 45. The Independent Monitoring Commission says that one of the tasks it set itself right at the outset was to deal with the ceasefire mentality, which in its view had,
I have to say that it was not just the ceasefire mentality that was used to obscure those implications; there were political parties working overtime trying to obscure them. I am thinking primarily of Sinn Fein and its allies, but it was quite shameful at the time that there were some unionists who supported that activity by Sinn Fein by assuring it that the republican paramilitaries were not under any obligation to decommission or to cease to exist at that time. Thankfully, they have changed their opinion, but it took some time before that happened.
In opening, the noble Baroness, Lady Harris, said that we still have a responsibility with regard to these matters, and that is right. She also mentioned the expenditure that we engaged in. I notice that the expenditure of the Independent Monitoring Commission averaged out at less than £1 million a year. I venture to suggest that very few million pounds have been spent in Northern Ireland so usefully and to such good purpose, and I do not think it would have caused any great difficulty for government expenditure if that had continued. It was-as I read this report, and obviously this is a matter of interpretation-largely at the instance of the British and Irish Governments that the commission was wound up. I regret that. I think there is still a valuable role that it could have taken. If we are now without that, it increases the responsibility on us to see that this matter is not forgotten. Speaking to me earlier, the noble Baroness said that the Secretary of State for Northern Ireland said that he was going to make regular reports to Parliament on these matters. I hope that happens and that we in this House get an opportunity to receive and to repeat such reports and to scrutinise them effectively.
Lord Browne of Belmont: My Lords, I thank the noble Baroness, Lady Harris of Richmond, for tabling this Question and thus facilitating what I am sure will be a fair and balanced discussion of the role and nature of the Independent Monitoring Commission. Over the past seven years, the IMC has had a challenging and onerous task, one that I believe it carried out with scrupulous independence. During that period, the commission published 26 separate reports. In many instances, they were strongly criticised by commentators in the media and by politicians of all parties. However, it is now generally accepted that the IMC's conclusions were fair, unbiased and based on the best available evidence derived from careful and meticulous investigations. I did not envy its task. When the facts or circumstances that it presented rebutted a publicly accepted assumption, the commission members were often pilloried by politicians and in the press. The task of publicly presenting uncomfortable truths, often when the peace process in Northern Ireland was known more for its fragility than for its stability, was as controversial as it was unpalatable, but without the IMC we would not have attained the necessary levels of public trust and confidence to allow the restoration of the devolved institutions in Northern Ireland in 2007. Without the IMC, the two communities in Northern Ireland could not have been convinced that their political enemies would make a positive contribution towards the creation of a better society for all. For that, I am very thankful.
In conclusion, I should mention the IMC's final report, which focused, unfortunately, on civil disturbances of a sectarian nature in east Belfast, the constituency that I represented for 25 years at council and assembly level. I had very much hoped that events of this nature had been relegated to history, and the report was indeed disturbing and depressing to me. Nevertheless, I take comfort from the fact that both communities continued to co-operate, the men of violence were sidelined and a descent into a spiral of sectarian violence was avoided. Perhaps we may conclude therefore that the fair and balanced final report of the IMC contributed in no small measure to achieving reconciliation between the two communities in Northern Ireland. Perhaps the Minister will agree that the greatest achievement of the commission is the general agreement in Northern Ireland that it is no longer required.
Baroness O'Loan: My Lords, I would like to express my thanks to the noble Baroness, Lady Harris, for securing this debate. I would also like to pay tribute to the members of the commission, who have done a wonderful job in securing the trust of the people by the way in which they went about their work.
"The fundamental principle of the Northern Irish peace process ... is that politics is the way to address communal challenges and to draw the whole society into full acceptance of the institutions of democracy".
Our troubled past still impacts on our perception of the rule of law. The noble and right reverend Lord, Lord Eames, did valiant work as co-chair with Denis Bradley on the Consultative Group on the Past. They identified areas in which action was necessary, from memorials to storytelling to victims. There has been no real movement since the publication of that report three years ago. We currently have a perception that there are people who have committed crimes for which they have not been made amenable, so the two issues are the application of the rule of law and the responsibility of politicians. The systems currently established for dealing with the past involve three institutions, each of which may be involved in one case: the Historical Enquiries Team, the Police Ombudsman for Northern Ireland and the Police Service of Northern Ireland. This is a cumbersome set of arrangements and is beset by legal difficulties for all parties, which inevitably result in significant cost.
So how do we manage the past? The difficulties are perhaps best explained by reference to two recent developments. The first is the publication under the 30-year rule of papers relating to the hunger strike in 1981. IRA spokespersons have consistently insisted that no concessions were made by the Thatcher Government which were sufficient for the hunger strikers to bring an end to the hunger strike. The published material contradicts that assertion. It appears to indicate that lives could have been saved. Despite the facts that some of those involved are still alive, there is no threat of prosecution and that no amnesty is required, we do not have an agreed version of what happened. The second involves the recent controversy surrounding the British application for the tapes recorded by former IRA member Dolores Price and stored in an archive at Boston College in the United States. Since making that tape, Ms Price has indicated that she drove a number of the disappeared to their deaths at the hands of the IRA. Police investigating the abduction and murder of Jean McConville, a mother of 10, require access to the tapes for investigative purposes. The Boston project was predicated upon assurances that the tapes would not be disclosed until after a period of 30 years, or the death of the individual. It is obvious that such assurances could not lawfully be given. Journalists and academics are subject to the rule of law as the rest of us are, and material can and will be recovered by the police according to the law for investigation purposes.
It is now being suggested that the only way to deal with the past would be a truth commission, with an amnesty for all individuals who appear before it. To suggest this is to ignore international law, which provides that you can have no amnesty for gross violations of human rights. The South African Truth and Reconciliation Commission, which is often held up as a model, would not satisfy the requirements of international law. If we did what it did, we would have to establish an amnesty committee that would sit in public, before which people would have to appear to seek amnesty, and in the course of which they could be cross-examined by
18 Jan 2012 : Column 643
Let us go back to the investigations. A number of impediments exist. Offences committed before 1998 can only carry a maximum sentence of two years. The Northern Ireland Arms Decommissioning Act provides that you cannot use anything recovered from the process of decommissioning. The Northern Ireland (Location of Victims' Remains) Act provides that you cannot recover anything that may be found in the process of recovering the body. A number of people have also been dealt with under the Royal Prerogative of Mercy, and a variety of pardons have been granted to an unknown number of people. Our situation is as complex as that of most post-conflict societies. We need to establish the rule of law in order to limit the ongoing prospect of further recruitment by the dissidents, and further recruitment and criminality by loyalist paramilitaries.
If we accept that we cannot just allow people to tell their stories to journalists with impunity and without challenge, because the law does not permit that; if we accept that a truth commission is unlikely to be able to provide blanket amnesties, because the law does not permit that; if we accept that the hands of investigators have been tied, what is left? There is the normal activity of storytelling; and there is a single independent unit to investigate all the unsolved murders of the past in an attempt to pick up from where we are now and to carry forward the investigation of individual cases in a coherent manner-accepting that few of them may lead to prosecutions but that the families will be told what can be told.
We still face a significant challenge in Northern Ireland. The warnings of the IMC are very clear. Our politicians and our people have a duty to act. What positive action can the Government take to encourage this?
Lord Lexden: My Lords, as I read this clear, calm, measured report, one thought above all kept coming back to me: that the commission which produced it was a remarkable body to which not just Northern Ireland but the whole country owes a considerable debt. It is deeply satisfying that the House has been given this opportunity to pay tribute to it, thanks to my noble friend Lady Harris of Richmond.
The commission had no precedent, no previous example of similar work to guide it. Nothing like it had been seen in these islands before. Drawn from three different countries and from diverse backgrounds, those who served on the commission were clearly people of great honour and probity and not a little ingenuity. The report shows that they worked closely and successfully together, despite-or perhaps because of-the absence of a formal chairman, an interesting aspect of the commission's operations that should be noted.
The commission was independent in name, and in every deed and action it performed. Its independence was the secret of its success-combined of course with the care and impartiality with which it examined the vast amount of material drawn from both official and private sources that was placed before it. As a result, its statements and views commanded widespread respect-the more so since they were delivered crisply and frankly.
The commission's final service was to provide a lucid summary of its own seven-year career. It is surely invaluable to have this record of unprecedented experience. Other countries afflicted by division and politically motivated violence may wish to consult and learn from it. The IMC model may not be transferred wholesale elsewhere, but it could prove immensely helpful to others facing circumstances of civil strife. The commission itself declared that:
Speaking as a current historian, I am sure that these future historians too will feel gratitude for this report when they come to form considered historical judgments on the violence that racked Northern Ireland for so long. It would be surprising if they did not accord a position of some prominence to the IMC when tracing the factors that finally brought about the diminution of Ulster's agony.
The commission had other important functions, but it is likely to be remembered chiefly for the thoroughness and rigour with which it monitored the paramilitary violence that continued after the formal declaration of ceasefires by terrorist organisations. As its report states,
The completely impartial way in which it did this enabled the commission to give positive assistance to Northern Ireland's progress towards greater normality, particularly in the years 2004-05, when the evidence it produced of continuing links between the IRA and Sinn Fein intensified pressure on the latter to commit itself more firmly to the democratic path. The commission also put the loyalist paramilitaries under significant pressure, exposing the details of the violence in which they remained involved while at the same time, as the report puts it, they sought to play,
The shadow of the gunman still falls too darkly and heavily over the people, particularly those in poorer communities, in Northern Ireland. The so-called peace walls, those potent emblems of division, have increased, not diminished. The Police Service of Northern Ireland continues to have a formidable duty of community protection before it, and my right honourable friend
18 Jan 2012 : Column 645
What our fellow countrymen and women in the Province need above all is a cross-community political strategy for a shared future. The Independent Monitoring Commission's report welcomes the establishment of an inclusive devolved Government. With it now rests the main duty of creating,
as my right honourable friend the Prime Minister has put it. Sadly, the Northern Ireland Executive has so far shown insufficient resolve in rising to this challenge. It must take some serious decisions if the people of Northern Ireland are to enjoy to the full the legacy of the work done by the Independent Monitoring Commission.
Parliament must itself keep abreast of the activities of the Executive to help it secure progress. We must not repeat the error made after 1920 under the Province's first system of devolved government, when Parliament closed its eyes to the internal affairs of this part of our country. As the noble Baroness, Lady Harris, said at the outset, we must never forget Northern Ireland.
The inception of the IMC was primarily a confidence-building measure. It was negotiated at great length, and one person who deserves some mention for it, as I hope the noble Baroness, Lady Smith, will know, is her right honourable colleague, Paul Murphy, who played a significant role as Secretary of State and Minister of State in Northern Ireland. As my noble friend Lord Trimble said earlier, during the negotiations we found there were those who did not want it to shine a light on some of those people who were conducting very unsatisfactory activities right across the Province.
The reality was that when eventually it did come on the scene, late in the day as it was, the IMC was derided and criticised. It was referred to as a paper or toothless tiger that would never gain the confidence of people in the community. However, as all noble Lords who have spoken so far have conceded, it made a very significant contribution to the progress that has been made.
As I have said to the Minister-and I hope that he will respond to this when he answers-I feel that it was premature to wind the commission up at this stage. I suspect that it was never intended to last for seven and a half years but, nevertheless, it successfully shone a light consistently and independently on all paramilitary organisations. It held their feet to the fire, despite the fact that some of them were negotiating for money to keep organisations that they particularly sponsored going, whether it was from a community point of view or otherwise. Someone was there always to look, to see, to point out and to report on what was going on. That is missing at present.
Some months ago, the Secretary of State called a meeting to which a number of us were invited and attended. Will the Minister confirm that the Secretary of State will follow that up with another meeting and that they will be held regularly so that members can be briefed on the details as the Government see them? My noble friend Lord Lexden made a very valid point. In the 1920s, once the devolution had settled and the Parliament for Northern Ireland was established, it was effectively the end of the story and people turned their minds to other things. We must not allow that mistake to be made again.
We all understand that money is tight and that £800,000 or whatever a year is still a lot of money. I accept that. But set that sum against the colossal financial and other costs that were borne by this entire community and the very many victims in Northern Ireland, in my view it was money well spent and a small price to pay for an independent guarantee. Because governmental and other material had been put into the public domain, people did not believe that there were some people-and I pay tribute to all of them-who were not afraid to say that a particular group or organisation was doing what it was doing.
I have to say to noble Lords that the paramilitaries still are the role models for many young males, particularly in deprived areas, because there are no others. They fall into the trap and even the dissident republicans are now recruiting among teenagers. Indeed, some of them have already been arrested and charged.
I believe that the commission deserves to be congratulated. I am glad that we got it going and I am sorry that it did not come earlier. I am also glad that those who derided it found, ultimately, confidence in its decisions. It is a good thing and, while this chapter has now closed, at least it is something in which those who participated can take pride in the work that they have done.
Lord Bew: My Lords, like other noble Lords, I thank the noble Baroness, Lady Harris of Richmond, for securing this debate. She is well known to be a good friend of Northern Ireland and her work in bringing about this debate is yet another example of what a good friend she is to the Province. I, too, should like to recall briefly the struggle to set up the IMC. I very much agree with the point made by the noble Lord, Lord Trimble. The truth of the matter is that the IMC was not enthusiastically received in the early days of debate by the Northern Ireland Office or the Irish Government. It is hard to recall that now because it has been so successful.
I should like to pay tribute in particular to Michael McDowell, a former Nieman fellow at Harvard and recently an official at the World Bank, who from his position in a Washington think tank kept No. 10 Downing Street under siege with regular e-mails arguing vigorously for the establishment of the IMC in the months leading up to its appointment. Today, I was talking to Jonathan Powell, Mr Blair's chief of staff at that time, who recalled honestly the weight and significance
18 Jan 2012 : Column 647
Turning to the report itself, I should like it to be understood in your Lordships' House that the report is not an answer to questions about where Northern Ireland is now and how we move it forward. It is instead an answer to the different question: what was the modus operandi of this body? As the IMC was a unique body, it may be important to describe how it worked. The report is an attempt to answer that question, rather than being in any real sense prescriptive about the future of Northern Ireland, and it is entirely right that that should be and is so. There are a number of conclusions to the report where members of the commission outline what they think are the key lessons.
Perhaps slightly impertinently, I should like to add a further lesson, which one should draw from the experience of the IMC-that is, a willingness to take it on the chin. The degree of criticism and abuse that the IMC received, particularly in the earlier years, was quite remarkable, as well as the strong refusal of many people in Northern Irish society to accept that it could perform a viable role or could be considered to be, in any sense of the word, independent. One of the remarkable things about the report is the way in which it quotes from some of those testimonies, including an article in the Irish News, the leading nationalist newspaper in Belfast, on 29 November 2008, which stated:
"In reality, British intelligence operates through deceit, dishonesty, murder, blackmail, double-crossing, cheating, conniving and downright thuggery. It may sound harsh but there is simply no other way to run an intelligence service. Their use of loyalist paramilitaries and informers beat the PIRA. So the intelligence agencies will tell the IMC whatever it takes to bolster support for the current political administration. That is what intelligence services do, which means that the IMC, and other opinions based on supplied intelligence are effectively worthless".
That is a common enough comment from this period. It is a mark of the calibre of the IMC and the people who served on it that it reprinted that quote. They took this kind of thing on the chin because that was what they had to do and then carried on with their work in a steady way.
Finally, I am sure that the noble Lord, Lord Alderdice, would not mind that we should mention the names of the other members of the commission: Joe Brosnan, of the Department of Justice in Dublin; Dick Kerr, an important figure in American intelligence; and John Grieve, who had such a distinguished career in our police service.
Baroness Smith of Basildon: My Lords, we owe a debt of gratitude to the noble Baroness, Lady Harris, for the opportunity for an invaluable and very interesting debate on the final report of the IMC. The debate is an opportunity to reflect on the changes tracked by the IMC since it was established in 2004-changes which, despite strong commitment from the British and Irish Governments, and the Northern Irish political parties, some doubted could be made. Indeed, once the process of change began, the pace and degree of change from some of darkest and most frightening of times is quite remarkable. It is remarkable that today a
18 Jan 2012 : Column 648
As we have heard, the IMC was established in 2004 following agreement between the British and Irish Governments. Its monitoring activity of paramilitary groups provided 20 of the 26 reports; the remaining five reports on security normalisation culminated with the conclusion that,
Despite perhaps understandable cynicism from some quarters, the Government ensured that the IMC had detailed information from the Army so that the IMC could monitor its normalisation plans. It is evident that the independent assessments of the IMC on normalisation and paramilitary activity helped to create the climate for the British and Irish Governments and the Northern Ireland political parties to edge closer to the next stage of meaningful dialogue.
The initial fears from some republicans that the IMC would investigate only republican paramilitary activity were disproved in the very first report, when it concluded that loyalist groups were at that time responsible for higher levels of violence than republican groups. However, despite enormous progress on the political and paramilitary front, we share the IMC's deep concerns about the attacks and threats to PSNI and its assessment of non-terrorist crime.
I have to say to the Minister that it is disappointing that to date the only response from Government to the report has been the Written Statement from the Secretary of State, Owen Paterson, on 4 July 2011 when the report was published-although it was completed in March. The Secretary of State praised the IMC and expressed his gratitude for its work and, recognising the problems that remain, wrote:
"I am conscious that Parliament and the public will wish to be kept informed of progress on a regular basis. I therefore intend to make statements to Parliament every six months summarising the threat".-[Official Report, Commons, 4/7/11; col. 76-77WS.]
It is now just over six months since that commitment was given. Can the Minister tell us when we can expect the first of those reports? I appreciate the work that has to be undertaken to prepare such reports, but given the seriousness of this issue, they are essential.
The final section of the report, "Looking Ahead", provides evidence that encourages but also gives concern. Circumstances, as we have heard, have changed significantly both in paramilitary activity and the stability and responsibilities of the devolved institutions. However, paramilitary activity has not disappeared, but changed. Dissident republicans are active and a serious threat, particularly against the PSNI, as we have seen, with horrendous consequences. Although loyalists have decommissioned, albeit with varying degrees of success, the IMC is not confident that they have finally disbanded as PIRA has, and they remain involved in serious and organised crime. The IMC's conclusion is that the level of serious crime is worse than it would otherwise be, and presumably worse than in other parts of the UK, because those involved learnt their "trade" in
18 Jan 2012 : Column 649
has now jointly to guide and lead Northern Ireland, along with community leaders. It is also implicit, as indicated by the noble Lords, Lord Empey and Lord Lexden, that co-operation must continue throughout the UK and within the Republic of Ireland. The continuing level of violence means that we cannot be complacent, because an increased level of violence has implications not just for Northern Ireland but also for Great Britain and the Republic of Ireland.
Can I make a final plea to the Minister and his Government? Stability in Northern Ireland is precious. Many people, some in your Lordships' House this evening, have worked very hard for a better, peaceful Northern Ireland and continue to do so. But Northern Ireland is bearing a heavy burden, with £4 billion of cuts and the greatest loss of public sector jobs in the entire UK. I urge the Government to think very hard about the impact of these cuts-the increase in unemployment and the increase in poverty-on a society seeking to deal with these other pressures that we have spoken of. All of us want a stable and inclusive Northern Ireland, but we also need a more prosperous Northern Ireland. To achieve that, the Government need to work with the Executive, not through their economic policies make it harder for them, especially given the backlog of investment that is needed.
I thank the IMC. The House needs to recognise that it did not have an easy task, but the way in which it conducted the responsibilities is to be praised and we should express our appreciation to all who were involved in it.
It might be helpful to begin by providing some background to the IMC and its functions. Your Lordships will recall that it was founded as a result of an international agreement between the British and Irish Governments signed in November 2003. This stemmed from the joint declaration of the two Governments in April of that year. The commission was formally established when the agreement came into force on 7 January 2004.
Four commissioners were appointed: the noble Lord, Lord Alderdice, and John Grieve were appointed by the British Government; Joe Brosnan was appointed by the Irish Government; and Dick Kerr was appointed by both Governments on the nomination of the United States Government.
The noble Lord, Lord Alderdice, cannot be with us this evening to contribute to this debate. I know that he would have relished the opportunity to have detailed his experiences first hand, as we would have relished
18 Jan 2012 : Column 650
The commission's remit was to monitor and report on paramilitary activities, on security normalisation and on any claims that any Minister or party in the Northern Ireland Assembly was not committed to democratic means. Having completed its remit, the commission was formally dissolved on 31 March 2011.
Tonight's debate, however, concerns the IMC's final report. I am sure your Lordships will be aware that it was very different from earlier ones. Rather than addressing the issues of paramilitary activity or security normalisation, the report focused on the changes that had taken place during the seven-year period of the commission's existence. It also provided its assessment of the factors that helped it to deliver its remit and the lessons learnt.
The report is therefore a valuable document. It will be of interest to those who have been and continue to be involved in the peace and political process in Northern Ireland as well as to those who are involved in conflict transformation around the world. I am grateful to the IMC for this contribution and I am sure that it will be a document that has considerable longevity.
Your Lordships will of course also be interested in the detail of the earlier reports, 20 of which covered paramilitary activity and the other five security normalisation. With the time available to me this evening, it is not possible to go into any great depth, but it is worth highlighting, as did the noble Baroness, Lady Harris, how far the landscape in Northern Ireland has changed since the IMC's creation in 2003.
The Provisional IRA's statement in July 2005, which announced the end of its armed conflict was, of course, a defining point. As the then Prime Minister, Tony Blair, said, it was a "step of unparalleled magnitude". In response to that statement, the Government undertook their security normalisation programme. That process was to last two years.
As I mentioned earlier, the IMC was obliged to report on that process. In September 2007, the commission published its 16th report, which confirmed that the Government had honoured their commitments and that the normalisation process was complete.
I am sure you will agree that the IMC played a crucial part in supporting and enabling historic changes in Northern Ireland over the years. It has assisted Northern Ireland's transition to a peaceful, stable and inclusive society, and we should not forget that.
Perhaps I may address the points raised by noble Lords. On paramilitary-related incidents, I can confirm to the noble Baroness, Lady Harris, that during the first six months of 2011, which is the period up to the final report, there were 30 paramilitary-style attacks and in the whole of 2011 there were 73. That compares with 94 in the whole of 2010. On 1 January 2012, 7,136 officers were employed by the PSNI, whereas in the previous July there were 7,197. So there are slightly fewer. However, the Government remain fully committed to ensuring that the PSNI has the necessary resources.
18 Jan 2012 : Column 651
On the Secretary of State's undertaking to update the House regularly on threat levels, I can confirm that he has already done this in response to Oral Questions and other questions, but he will also make a Statement to Parliament in the coming weeks. I tried to go a little further, as the noble Baroness, Lady Smith of Basildon, is also interested in this. The word "soon" is a good word and I shall have to stick to that, but I do not think that we will have to wait long for this further information. As she has indicated, work has to be done and this has to be prepared.
The noble Baroness talked about progress towards a shared future. The Government will do all that we can to support the work of the Executive, especially in the key areas of rebalancing the economy and combating sectarianism, but the lead certainly has to come from Northern Ireland.
There was fulsome praise from one or two noble Lords for the work of the IMC. Many noble Lords-the noble Lord, Lord Empey, got closest to this-asked whether the work is really done and whether it should have been kept going a bit longer. If noble Lords refer to the document, they will see that Article 16 states:
that is, the British and the Irish Governments' mutual agreement, which was agreed on 4 November 2010. We must remember that monitoring the British Government's commitment to a package of security normalisation measures was dealt with and signed off, as it were, under Articles 4, 5 and 6. In addition, no party in the Northern Ireland Assembly has claimed that a Minister or Member has not committed to non-violence, so that has not been a consideration in seven years because no one has said, "This is someone we should be looking at". We therefore return to what has taken the most time: the continuing activity of paramilitary groups. That is the one area that obviously still causes concern, the other two areas having been dealt with.
I have indicated that the British and Irish Governments have agreed that the agreement must come to an end, but if noble Lords look at page 55 of the 26th report, they will see that it is quite clear that the team at the IMC also takes that view. Article 15.1 states:
"The institutions designed to facilitate transition to normality-of which we are one-are of their nature abnormal and Northern Ireland has reached a point when it is right for them to leave the stage".
Clearly, the IMC has seen its work as monitoring the paramilitary groups that were linked to political organisations and believes that that has been achieved. The area that has not been achieved is calling a halt to dissident activity. The IMC and the Government are now saying that that is now a role for the law enforcement institutions of Northern Ireland.
Lord Shutt of Greetland: I do not know whether I said dissident republican-I think I said just said "dissident"-but if there is dissident activity, whether loyalist or republican, that is embraced in my remarks.
Although it is not really a matter for this particular debate on the IMC, I understand the real concerns of the noble Baroness, Lady O'Loan, about dealing with the past. The Secretary of State intends to meet the political parties in Northern Ireland again to seek views on how consensus can be found. While this Government have a role to play, any successful outcome will be possible only if agreement is found within Northern Ireland.
I agree with the noble Lord, Lord Lexden, that the 26th report is a really impressive document. It was a pleasure to read it in the sense that the team had really considered how the seven years had been spent. It may well be of interest to lots of people to understand how we came to undertake what we have been doing. I see the point that he makes.
I think that I have covered most of the points. I clearly agree with the noble Baroness, Lady Smith, that stability is precious and that the economy is important. Of course, in her initial remarks, my noble friend Lady Harris raised the point about the incredible resources that come from the taxpayer to support Northern Ireland. Noble Lords will be aware of the work of my right honourable friend in the other place who has certainly taken the initiative in rebalancing the economy and on corporation tax. We discussed that on an earlier occasion.
I think I am out of time and that I should conclude on that. If there is anything that I have not covered, I shall endeavour to write to noble Lords. In the words of us all, we thank the IMC for a piece of work well done.
Legal Aid, Sentencing and Punishment of Offenders Bill
21st Report from the Constitution Committee
22nd Report from the Joint Committee on Human Rights
21st Repors from the Delegated Powers Committee
22nd Report from the Delegated Powers Committee
(a) rights to enter or remain in the UK;
(b) an employment claim relating to the experience of trafficking;
(c) a claim for damages relating to the experience of trafficking; or
(d) compensation relating to the experience of being trafficked under the criminal injuries compensation scheme."
Baroness Butler-Sloss: My Lords, the Minister may be relieved to hear that these are the last two amendments in my name. They refer specifically to human trafficking, a very special part of the Bill. I declare an interest as the joint chairman of the All-Party Parliamentary Group on Human Trafficking. In moving Amendment 61A, I must also refer to Amendment 90A, which I hope noble Lords will consider to be self-evident from the wording.
The European Union directive, which the Government have signed up to, to everyone's delight, has in Article 12(2) and Article 15(2) the requirement for legal aid provision and legal assistance. If the Minister will forgive me, I want to quote the words of Article 12(2), which are very similar to the words in Article 15(2), which deals with adults. The directive states:
"Member States shall ensure that victims of trafficking in human beings have access without delay to legal counselling, and, in accordance with the role of victims in the relevant justice system, to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be free of charge where the victim does not have sufficient financial resources".
That is the background to the four matters raised in the first of the two amendments, which aims to provide civil legal services to victims of trafficking in relation to rights to enter or remain in the United Kingdom, employment claims, claims for damages in the employment tribunal, damages in the county court or possibly the High Court, and compensation under the criminal injuries compensation scheme.
The Immigration Minister in the other place, the right honourable Damian Green MP, suggested recently in answer to a question that victims of trafficking did not need legal aid. If he was including civil proceedings, then the Minister is mistaken. There are a number of situations in the civil and immigration areas of the law where legal aid and advice can continue to be vital for many victims, who will be disproportionately adversely affected by these cuts. They are, as noble Lords will know, a very special group of disadvantaged people. Amendment 61A would restore legal aid to victims of trafficking in the four specific areas that I have already mentioned.
Between July and December of last year, something like 219 victims of trafficking were identified under the national referral mechanism. By no means would all of these require legal aid for the various areas that I am referring to. Some victims will require asylum while some will seek immigration status and not asylum; they will be trying to stay in the United Kingdom.
18 Jan 2012 : Column 654
The two main groups who will be affected by Amendment 61A are sex slaves-victims of sexual exploitation-and domestic slaves, who are caught in domestic labour situations. The group who have been sexually exploited would almost certainly be seeking damages in the county court if the traffickers have assets here, as some do. These traffickers are serious and well organised groups with a great deal of money available.
The victims of labour exploitation are generally unpaid domestic servants who make their claims in the employment tribunal. The trafficker in those cases is very often an individual who has brought somebody in or employed somebody to whom he or she is not paying a single penny. They take their passport from them and make it impossible for them to leave the house. Those people are trafficked but in a different way. That sort of trafficker will have assets in this country and the employment tribunal can make orders in relation to them. I remind the Minister that it would be far preferable for victims to claim against traffickers than against the criminal injuries compensation scheme which relies, as everyone knows, on public money. How on earth are foreigners without legal advice and assistance, and with limited English, going to manage to get to the county court or the employment tribunal if these cuts take effect?
At present, the effective system is that law centres with legal aid contracts take on an advisory role for these victims using legal aid. They get the case to the door of the county court or the employment tribunal. Marvellous pro bono lawyers, mainly barristers, then conduct the cases in the tribunal and sometimes in the county court. It is very interesting that employment tribunals are making large awards to victims of domestic exploitation-up to a quarter of a million pounds. These are far larger than those in the county court. I am told by the North Kensington Law Centre-which does the most excellent job-that if this legal aid is removed, the help will not be available and the traffickers will not be challenged by compensation claims. The only area that will retain legal aid will be claims for discrimination, which is not always the appropriate claim for a victim of human trafficking, whose main claim may be for five years of unpaid wages. I am told that a large number of these cases in the employment tribunal settle very early on for quite large sums and consequently cost very little money to the legal aid system.
There is a further serious point. It is suggested that domestic visas may be withdrawn. The Government have said this, but I do not know whether they have yet made a decision. If they do withdraw domestic visas, women and children brought in to work in houses will be illegal immigrants. This area of trafficking will be uncontrolled and the employment tribunal will no longer be available. It will be most likely to affect children, because children can be brought into this country on education visas by fake parents or other relatives and then put to work, as they are already put to work as domestic slaves. It will be extremely difficult
18 Jan 2012 : Column 655
A matter of particular concern is the proposed telephone gateway, which is the Government's idea-I do not mean that impolitely-or plan for how people can obtain help. Not all victims necessarily get processed through the NRM and they need to be otherwise identified as victims. As I understand it, the telephone operators will not be specialists. One would not expect that. However, a foreign victim of trafficking with little or no English, having escaped from an appalling situation of slavery, is not likely to be coherent or explicit on the telephone. He or she may say his or her passport has been withheld, or that he or she has not been paid, and probably does not know what to ask for-for example a claim for compensation or the right to remain until the claim has been processed. He or she is very unlikely to say he or she is a victim of trafficking, and is very unlikely to be identified by the telephone operator as a victim or to be referred to the appropriate specialist adviser with expertise in this field of trafficking. These are very complex cases-how on earth will the telephone operator cope? Victims are likely to fall through the net. This will be discrimination against those victims; in which case the United Kingdom will be failing in its obligations under the directive.
I hope the Minister accepts that the Government have overlooked the effects of cuts upon this relatively small, special group of people. The wording of Amendment 61A could undoubtedly be improved, particularly in terms of identifying who is actually a victim of trafficking, but to penalise this group of seriously disadvantaged people would be contrary to the EU directive, the European convention and, perhaps more importantly, the Government's own excellent strategy document. I beg to move.
Baroness Hamwee: My Lords, I support these amendments with great enthusiasm. The noble and learned Baroness referred to the convention, and at the end of her remarks she referred to the government strategy which I think was published in the middle of last year. That, as I read it, has two limbs: one is to deter and disrupt trafficking; and the other, quite explicitly, is improved victim identification and care. These amendments fall absolutely squarely within the strategy that has already been articulated.
Trafficking by its nature is very largely hidden. It seems that as the unwilling but nevertheless host country in which victims find themselves, we have a number of duties. One of those duties is to enable these people to use the facilities of the state. The issues that have been listed in these amendments would fulfil that obligation. The noble and learned Baroness referred to migrant domestic workers. Those who may have been trafficked to work in cannabis farms or sometimes in restaurants-in the kitchens, not where you see them-would have similar sorts of claims. I do not want to repeat all the points that have been made or turn this into a hearts and flowers argument, as I see it as a matter of duty and central to what the Government have already identified.
Lord Howarth of Newport: I am in total sympathy with the amendments that the noble and learned Baroness has tabled, but I wanted to ask her whether she envisages that victims of trafficking who might make employment claims could also include people who are employed by gangmasters in conditions of well nigh slavery, fruit-picking or cockle-picking.
Baroness Butler-Sloss: I certainly saw the amendment as broad as that, and they may very well be able to do it through the employment tribunal. The great problem is that the employment tribunal will no longer have legal aid.
Lord Judd: I warmly commend the amendment, which I think will receive strong support from all parts of the House. The Bill in general is open to the awful charge of shifting the burden of our economic difficulties on to those who already in their lives face disproportionate difficulties and hardship. This is a particularly nasty and mean provision within that general strategy. These people are victims. They are not people who have just transgressed the law; they are victims of cruel, harsh and cynical treatment. If this country stands for anything, it must surely stand for ensuring that such people get some kind of justice after the experiences to which they have been exposed.
Lord Avebury: I would like to say a word on migrant domestic workers. First, I congratulate the noble and learned Baroness, Lady Butler-Sloss, on the wonderful work that she does on the All-Party Parliamentary Group on Human Trafficking, which has been influential on helping to shape government policy on trafficking, which has as she said made enormous strides in recent years.
The particular case of migrant domestic workers is subject to a consultation being undertaken by the Home Office. From what I have heard, the Government are moving towards ending the special status of migrant domestic workers on the basis that, as the Home Office considers, employers who want to have domestic servants should employ people from the European Union and pay them the national minimum wage. This is a fantasy when you consider that many lawyers are at present already breaking the law by bringing in people under other headings, such as students, and then transferring them to domestic slavery.
The particular case that has been drawn to our attention many times by Kalayaan, the organisation that defends the rights of migrant domestic workers, is that of people who bring in domestic workers as visitors accompanying them when they enter the country. They get leave to enter for six months, which in many cases is enough to meet the needs of the employer, but in some cases they remain on as overstayers after that period. If the Government move in the direction that I have suggested, there will be an enormous increase in the number of people brought in illegally by the employers in this way. They will really need the support that they can get only from having access to legal aid, because by definition if they manage to escape they will be destitute. They will have the support of NGOs
18 Jan 2012 : Column 657
I very much welcome the amendments tabled by the noble and learned Baroness and hope that if the Government cannot accept them in precisely the form as they are tabled today, they will find some way in which to meet this need.
Lord Bach: My Lords, we absolutely support the noble and learned Baroness in her amendments in this group. Very few crimes engender more opprobrium or anger both within and between Governments than crimes involving human trafficking. It is dispiriting that even today the illegal trade of people in this form still exists and perhaps even flourishes.
As the noble and learned Baroness said, we should rightly be proud that the international community has worked together to promulgate the protocol to prevent, suppress and punish trafficking in persons, especially women and children, adopted by the United Nations in Palermo in 2000. I am proud again that nine years later our country ratified the Council of Europe Convention on Action against Trafficking in Human Beings. The noble and learned Baroness quoted from part of that convention. The quote that I have is from Article 15 of that convention, to which she referred. She quoted from Article 12, I think, but Article 15.2 says:
"Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets"-
The feeling around the Committee seems to be, and I very much share it, that that approach on this matter is unacceptable. Neither is it worthy of our legal system and our commitment to access to justice. It is not enough to rely on the Human Rights Act 1998 and say that anything that might not be in breach of it is somehow okay.
If legal aid is taken out of scope, it threatens to force victims of trafficking-acknowledged by the Government as some of the most vulnerable people in our country-to navigate an unfamiliar system in a language they may not understand, when they are almost certainly highly distressed and seeking legitimate redress against their persecutors. The noble and learned Baroness described the state of a number of those who had suffered in this way. To abandon them in the way that the Government intend, if this Bill were to go through unamended, for such small savings would be a violation of our positive obligations under the treaty and of our obligations under any sensible framework for deciding when the state should provide legal advice to those who need it.
If I use an unparliamentary expression, forgive me, but this amendment really should be a no-brainer. Victims of trafficking deserve not just our compassion and help, but that of the state when they require it. If we take the Government's own analytical framework for decisions on scope for legal aid, this would seem to be a group that perfectly fits the criterion of a,
As far as the gateway to which the noble and learned Baroness referred in opening this short debate is concerned, it must always be remembered that the gateway is there only for matters that remain in scope. In any matters that come outside scope, the person who receives a phone call from a would-be client has to say, "I am sorry, this is not in scope". Maybe they will give the name of some solicitor or other but they will not be able to take it further themselves, because the matter is out of scope. How horrific it would be if this matter became out of scope, so that even when a telephone call was made-and that is not the most satisfactory way of doing it-they could not be helped.
Secondly, some years ago the noble Baroness, Lady Young of Hornsey, who is not in her place and the noble Lord, Lord Carlile, among others, came and saw me about an issue in a criminal justice Bill that was going through this House which involved this sort of vulnerable victim. They asked us to take some action in regard to it. It was not to do with legal aid or anything like that, but I mention it because we listened to what they had to say. The arguments then were powerful; they are very powerful tonight on behalf of this group. I very much hope that the noble and learned Lord will at least take this away, and consider whether the Government cannot make what would be generally received as a very acceptable concession, if concession is the word, to the present wording of the Bill. Given all the difficulties the Government have and the criteria they set down, I ask them to reconsider their approach to this group of people. These are very powerful amendments indeed.
Baroness Hamwee: My Lords, I wonder whether the noble Lord has had the professional experience that I have had, where somebody who is faced with a claim which may result in quite a hefty award of compensation or damages against him finds that his mind is quite
18 Jan 2012 : Column 659
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, the noble and learned Baroness, Lady Butler-Sloss, indicated when speaking to her amendments that they were the last two that she had in this section. None the less, in dealing with vulnerable people, their importance was obvious by the end of the debate that they engendered. The more that I have learnt about human trafficking over the years, the more appalled and outraged I am by some of the abuses that go on. Various conventions have been acknowledged, such as the Council of Europe Action against the Trafficking of Human Beings, to which the previous Administration quite properly signed up.
Amendments 61A and 90A intend to bring into scope particular areas of legal aid for victims of human trafficking. Amendment 61A would give the victims of such trafficking legal aid for immigration matters as well as for damages in compensation claims in relation to the experiences of trafficking before the Criminal Injuries Compensation Authority, the civil courts and the Employment Tribunal. Amendment 90A would allow for publicly funded advocacy for victims of human trafficking in cases that they bring before the Employment Appeal Tribunal.
On the immigration element of Amendment 61A, the first point to make is a general one that was reflected in one or two contributions. In many cases, victims of trafficking want to return home. In some cases, though, they wish to claim asylum, and, for that, legal aid will remain. It is important that that point is made clear. There may be other occasions where they need to remain in the country, perhaps to help police with their investigations or on compassionate grounds if there are compelling reasons for that. There are provisions for victims to remain in these circumstances.
As the Committee will know, the Government provide funding of some £2 million per year to the Salvation Army to provide support to victims of trafficking so that they can rebuild their lives. This includes signposting and informing victims of their rights to stay in the country, whether in the short or long term. However, we believe that specialist legal advice in respect of immigration on top of that is not required. Nevertheless, the Salvation Amy and its subcontractors signpost and inform victims of their legal rights.
Government funding also helps to inform people about their options regarding compensation as a result of trafficking, whether through the Criminal Injuries Compensation Authority, the civil courts or the Employment Tribunal. Compensation orders, too, can be made at the end of a criminal trial.
For the civil routes to compensation, which a number of contributions have revolved around, the Government made it clear in their response to the consultation on legal aid reform that the route for funding in these cases would be the exceptional funding scheme, and published guidance will reflect that. In fairness, the noble Lord, Lord Bach, acknowledged the Government's position, although he did not agree with it, and it would be unfortunate if this debate gave the impression that all avenues of funding have been cut off or withdrawn.
The noble and learned Baroness, Lady Butler-Sloss, asked whether it would be possible to make claims against traffickers and whether those claims would be funded. The answer is yes-they are capable of being funded through exceptional funding. This is because the right to legal support for compensation claims, as set out in the convention, is with reference to the requirements of Article 6 of the European Convention on Human Rights and is therefore very much in line with the exceptional funding test. It is important to recognise that there is a route for funding for people who find themselves in these circumstances.
Amendment 90A would allow for advocacy for victims of trafficking in employment appeal tribunals. The noble and learned Baroness raised the question of the consultation on visas for domestic workers, a point picked up by my noble friend Lord Avebury. My understanding is that a Home Office consultation has taken place; as far as I am aware, no response has yet been published, but I will certainly ask officials to ensure that the comments made on that important point are drawn to the attention of those at the Home Office who are dealing with the consultation.
With regard to the Employment Appeal Tribunal, it has been observed that some very large awards can be made. Again, however, such cases would in principle be funded through the exceptional funding scheme if required by not only the European Convention on Human Rights but European Union law. The exceptional funding scheme is available in these cases-it is not the case that support has been withdrawn. There are other means of support for those who have been trafficked. As I have said, the Salvation Army has made efforts to support and assist them. Therefore, I ask the noble and learned Baroness to withdraw her amendment.
Baroness Butler-Sloss: My Lords, may I first thank noble Lords for their substantial and much appreciated support for these two amendments? The Government are undoubtedly to be congratulated on their strategy. They are also to be congratulated on opting in to the directive. It is the directive to which the Minister has just referred and it is the leading matter that we have to consider. The convention matters but the directive is part of English law and requires,
I have to say that I am disappointed by the Minister's response. The Salvation Army, which got the contract for this work, is doing excellent work but it is expected to look after these women-they are generally women-for only up to 45 days. The fact that, out of the goodness of its heart, it keeps some of these people far
18 Jan 2012 : Column 661
Who is going to do that for a non-English person? We ought to look after our own people but we also ought to look after the people brought here against their will, or brought here misleadingly with promises that turn out not to be true. They are, in effect, dumped here or they escape. We have to look after them; we have a legal and moral duty to do so. Unless the Minister is able to say in due course that exceptional funding will specifically include claims by victims of human trafficking, his response will be inadequate. I should like him to go away and discuss with his advisers-and perhaps, as I asked a little earlier, with the Lord Chancellor-whether this very special and very small group of people should be specifically identified. I do not mind whether they are identified under exceptional funding or elsewhere, but they must not be left out on a limb. For the moment, I beg leave to withdraw the amendment.
Baroness Gould of Potternewton: My Lords, in moving Amendment 62 I shall speak also to Amendments 63 to 67, 69A and 70A. I am delighted to follow the noble and learned Baroness and the previous debate. This is an added dimension, which also relates to a very small number of very vulnerable people. I shall try to explain it simply because it is complex but I will do so as well as I can, not being an expert in immigration rules, rather as the noble Lord, Lord McNally, is not an expert in the subject. However, there are principles here that it would have been impossible to avoid.
I start with the purpose of Amendments 62 to 67. These six amendments need to be considered together. They extend the legal aid protection provided by paragraph 25 of Part 1 of Schedule 1 to victims of domestic abuse whose immigration status is dependent on their abusive partner. Paragraph 25 currently provides for legal aid for migrant victims of domestic abuse whose leave to enter or remain is dependent on their relationship as the partner of a British citizen or person with indefinite leave to remain so that they may have legal aid to help them address the consequences to their immigration status of escaping the abusive relationship. These amendments would extend the same
18 Jan 2012 : Column 662
Several organisations, including Rights of Women, the National Federation of Women's Institutes, Southall Black Sisters and the Moroccan Women's Centre, have highlighted the situation of victims of domestic abuse who face being trapped in an abusive relationship because their immigration status is dependent on that relationship and they fear the immigration consequences of seeking to escape. However the Government have already amended the Bill to provide legal aid for some of these victims. For instance, it now provides for victims who are dependent on British citizens and settled persons. The Government have agreed to give further consideration to other victims as yet left out of the Bill, such as those dependent on European Economic Area nationals and others exercising free movement rights, those dependent on migrants with limited leave to enter or remain and those dependent on migrants whose status is irregular. Each of these classes of victim face the same or similar difficulties to the class of victim for whom the Government have now made provision in the Bill. Those difficulties were described by the Minister for Legal Aid. He said:
"There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status. The type of trauma that they might have suffered will often make it difficult to cope with such applications. We also appreciate that people apply under great pressure of time, and access to a properly designated immigration adviser is a factor".-[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]
Therefore, the Minister identified four factors relevant to why legal aid should be provided in the cases to which he was referring: the risk that the victims will stay trapped in abusive relationships for fear of jeopardising their immigration status; the trauma they may have suffered which often makes it difficult to cope with the application; time pressures that apply to immigration proceedings; and difficulties of access to a properly designated immigration adviser. These factors are borne out in that domestic abuse-related immigration applications are far from straightforward.
Further, the exclusion of some victims from legal aid offends the Government's own factors which they identify as needing to be taken into account. They include the fact that the UK Border Agency's record in dealing with these cases is especially poor with some 61 per cent to 69 per cent of refusals being overturned on appeal; the gathering and presentation of evidence, with associated costs and risks, is often necessary for success; many applications are, sometimes wrongly, refused by the UK Border Agency on the grounds of inadequate evidence; to escape abusive relationships victims need to understand the implications for their
18 Jan 2012 : Column 663
I turn now to Amendments 69A and 70A that together would ensure that those who have experienced gender-based violence are able to access immigration advice and representation and are not placed at risk of experiencing further violence and abuse. The amendments would protect children, victims of domestic violence and trafficking, as well as other groups who are at risk of gender-based exploitation such as migrant domestic workers to whom the noble and learned Baroness referred. They would also protect others whose ability to represent themselves in an immigration law issue is impaired because of their age, illness or disability.
The amendments would also confer a power to specify other classes of persons in regulations. The "specified person", as referred to in Amendment 70A would include children, victims of trafficking and victims of gender-based violence-men as well as women. The Government made the decision to bring back into scope legal aid for victims of domestic violence applying for indefinite leave to remain in the UK under the domestic violence rule-rule 189A of the Immigration Rules. Announcing that decision, the Minister for Legal Aid, said,
"There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status".-[Official Report, Commons Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]
The concerns raised by the Minister apply equally to other vulnerable applicants in immigration cases who have experienced or are at risk of violence and abuse, who simply cannot be expected to represent themselves in applications effectively because of the trauma they have experienced. These include individuals who have been trafficked into the UK for the purposes of sexual or other exploitation, and migrant domestic workers-many of whom, as the noble and learned Baroness said, are trafficked into this country and are extremely vulnerable to exploitation and abuse because of the invisible nature of their work that takes place in private households, and who, because of their dependency on their employers for their work, accommodation and immigration status, can be exploited by their employers and find themselves in a very similar position to victims of domestic violence.
I am told that there were around 15,000 migrant domestic workers issued with a visa to work in the UK in 2010. I am horrified to hear that there might be a move to remove their right to a visa. Research shows
18 Jan 2012 : Column 664
Equally, victims of domestic violence whose immigration status may not be dependent on maintaining an abusive relationship with their spouse may also be vulnerable to remaining in a violent relationship if they cannot access legal aid to regularise their immigration status. Rights of Women indicates that it receives many calls to its immigration and asylum law advice line from women whose leave is not dependent on their spouses, yet their insecure immigration status is still used by the perpetrator as a tool of control.
All these cases raise complex issues and affect particularly vulnerable women whose fundamental human rights, including the right to be free from inhuman and degrading treatment, are at risk. Yet what sets these cases apart from other areas of law is that there are no alternative advice providers because it is a criminal offence for anyone to give immigration advice or services unless they are qualified to do so. Removal of legal aid for the cases such as those I have identified will place women at greater risk of violence and prevent those with valid legal reasons for remaining in the UK being able to access and benefit from their legal rights.
This is not a marginal problem, because between 1 April 2009 and 31 March 2011 there were 1,481 referrals to the National Referral Mechanism, the national framework for the identification of human trafficking in the UK. We know that, in reality, the figure for individuals trafficked is likely to be higher. A further implication of the Bill is that they will not be eligible for legal aid because of the implications of being referred into the National Referral Mechanism, and therefore their informed consent for referral may be questioned.
My information from Rights of Women is that it hears countless testimonies from women whose immigration status, which is often reliant on their abusers, has restricted their ability to leave a violent situation and access the advice and support services that they need.
|Back to Table of Contents
|Lords Hansard Home Page