5 Mar 2014 : Column 1329

House of Lords

Wednesday, 5 March 2014.

3 pm

Prayers—read by the Lord Bishop of Chester.

Health: Multiple Sclerosis Nurses


3.07 pm

Asked by Lord Dubs

To ask Her Majesty’s Government what plans they have to ensure that all persons with multiple sclerosis have access to a multiple sclerosis nurse.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): It is the responsibility of commissioners and local providers to ensure that services have the staff they need to deliver high-quality care for people with multiple sclerosis. Listening to and learning from patients to improve care is a top priority for the Government. We are committed to putting patients at the centre of services. Commissioners are under a legal duty to involve patients and the public in the commissioning of services.

Lord Dubs (Lab): My Lords, that is a bit disappointing. Does the Minister agree that MS nurses provide an invaluable service for patients as regards treatment, advice and access to services? Does he further agree that MS nurses can save costs elsewhere in the health service because they can reduce the pressure on GPs and on hospital admissions? Would it not be sensible for the Minister to say positively, “We need to ensure that every patient with MS should have an MS nurse to provide help and support”?

Earl Howe: My Lords, I agree with the noble Lord, Lord Dubs; there is no doubt that MS specialist nurses provide support that is extremely valuable for MS patients and their carers. They help to manage relapses and give advice, they act as a gateway into counselling and physiotherapy, and they help to minimise hospital admissions and reduce the need for consultant appointments. I do not disagree with the noble Lord at all. However, it is worth reminding ourselves that NICE guidelines on multiple sclerosis set out that after diagnosis, patients should be,

“put in touch with … a skilled nurse or other support worker”.

We expect those who work in the NHS to take account of NICE guidance.

Baroness Brinton (LD): My Lords, given the Minister’s last response, is it not extremely worrying that currently 25 multiple sclerosis nursing posts are under threat of redundancy—about 10% of all MS nurses? Shifting back to generalist nursing care would be a waste of an extremely valuable resource in both health and economic terms, as has been outlined. What is being done to encourage hospitals to maintain this vital service, which can save clinical and out-patient costs, too?

5 Mar 2014 : Column 1330

Earl Howe: I have already mentioned the NICE guidelines, which we expect NHS professionals to take account of. In that context it is worth saying that the guidelines are due to be updated later this year, and patients and patient groups will have the opportunity to feed into that. However, in the end it is up to local healthcare organisations, with their knowledge of the needs of their local populations, to determine the workforce required to deliver safe and effective patient care within their available resources.

Baroness Pitkeathley (Lab): My Lords, given what the Minister has said about the variations, can he explain a bit more about the tremendous regional variations in the numbers of patients who have access to an MS nurse, because this causes great confusion to patients and their families? For example, I understand that in the east of England there are 220 patients per MS nurse, whereas in the north-west there are as many as 650.

Earl Howe: I am aware of those variations. Making the NHS more responsive to the needs of people with long-term conditions such as MS is a key government priority. We have committed to it in the NHS mandate, the NHS constitution and the outcomes framework. Strategic clinical networks have a key role to play in providing expertise and guidance and to smooth out the variations that the noble Baroness mentions. She may be aware that NHS England has appointed David Bateman as the first national clinical director for neurological conditions, whose job it will be to look at the very issues that she has raised.

Baroness Gardner of Parkes (Con): My Lords, I declare an interest as I have a daughter with multiple sclerosis. I think that I mentioned this some time ago, but is my noble friend aware that the Chelsea & Westminster Hospital waited years to get an MS nurse but had her for only a short time before she was poached by the Royal Free? Then no replacement MS nurse was even considered; the next vacancy on the list was considered and, as far as I know, the MS nurse has still not been replaced. Is there some problem? Is there a shortage of MS nurses? How was one so easily poached from one hospital by another? Is it a case of no one really wanting to spend the money on that and wanting to treat it is as a general thing, comparing it to all other jobs in a hospital? Can anything be done about that?

Earl Howe: My Lords, something can be done. First, patient groups can speak up and can speak to commissioners. As I said in my original Answer, we are committed to putting patients right at the centre of services, which means giving them a voice in the services that are commissioned. I am not aware of the situation in the Chelsea & Westminster Hospital, but my noble friend may like to know that there are now more than 3,300 more nurses working on NHS hospital wards than there were in 2010. That is a positive trend.

Lord Turnberg (Lab): My Lords, is this not part of a wider problem, in that we have seen a marked reduction over the past few years in specialised nurses working in the community, where they can do so much

5 Mar 2014 : Column 1331

to help keep patients safe and out of hospital? Should we not be seeing joint funding between the local authorities and the CCGs to fill this gap, which is looming all the time?

Earl Howe: Yes, my Lords, that is why we are creating the Better Care Fund, with £3.8 billion worth of shared money between the NHS and social care, starting in 2015, to make care seamless for the patient, whether it is NHS or social care. That fund has scope to do exactly what the noble Lord wishes to achieve.

Lord Wigley (PC): My Lords, does the Minister appreciate the cross-border issues that sometimes arise between north-east Wales and north-west England, where multiple sclerosis patients may get some primary treatment in England but the level of support services, such as nurses, may be different over the border? Can he ensure that there is discussion on this between his department and the National Assembly in Cardiff to ensure that people do not miss out for that reason?

Earl Howe: I will gladly take that point away, but I know that I and my colleagues and the officials in my department are careful not to appear to lay down the law to our friends and neighbours in Wales as to the services that they should offer patients there.

Lord Monks (Lab): My Lords, will the Minister comment on the remarks made to me by an MS sufferer I know very well that MS is a Cinderella service in the NHS and does not get its fair share of resources? Does the Minister agree with those remarks?

Earl Howe: I think that has been true. We are very clear that neurology and, for that matter, specialised neurology, should assume a higher priority than it does. That is why it is so welcome that Dr David Bateman has been appointed as the first national clinical director, which I believe will raise the profile of all neurological conditions. However, the status of NICE guidelines and the quality standard that is coming down the track, which NICE will produce in a year or two, will also help to raise the standing of this very serious condition.

European Union: Turkish Accession


3.15 pm

Asked by Lord Balfe

To ask Her Majesty’s Government what steps they are taking to encourage the unblocking of all chapters of the negotiations on Turkish accession to the European Union, and in particular Chapter 31 on foreign, security and defence policy.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, the UK is clear that the EU accession process remains the most effective mechanism for continuing reform in Turkey and we remain fully committed to it and supportive of it. The UK will continue to work closely with EU member states and with European institutions to advance Turkey’s progress across all chapters of the acquis, including Chapter 31.

5 Mar 2014 : Column 1332

Lord Balfe (Con): My Lords, I thank the Minister for her reply. As a long-standing advocate of Turkey’s accession, may I say that many in Turkey are now beginning to doubt the sincerity of the European Union, which seems to drag out negotiations for a long time? Turkey has been a loyal partner in common, foreign and security policy issues. I hope that the Minister can assure me that the Government will put pressure on other member states, many of which are using specious arguments for keeping Turkey from completing its negotiations, when the truth of the matter is that they do not want Turkey in at all.

Baroness Warsi: My noble friend makes some important points. I reiterate that the UK remains the strongest supporter of Turkey’s EU membership bid. Turkey itself has repeatedly reaffirmed its strategic goal of joining the European Union, most recently in February of this year. It has the sixth largest economy in Europe and is a key NATO ally. Therefore, we will do all we can to progress its membership.

Lord Anderson of Swansea (Lab): My Lords, it is surely welcome that the intercommunal talks on Cyprus have now recommenced. Does the Minister agree that the positive support of Turkey for this process would be a major boost to its EU ambitions?

Baroness Warsi: As noble Lords will be aware, a number of chapters have been politically blocked by, among others, Cyprus. That is one of the reasons for the lack of progress. Noble Lords will be pleased to hear that on 11 February the leaders of the Greek Cypriot and Turkish Cypriot communities respectively met under United Nations auspices. Since then there has been further progress, with the two negotiators meeting several times, and on 27 February they broke new ground when the Greek Cypriot negotiator held talks in Ankara and the Turkish Cypriot negotiator did the same in Athens. That progress is to be welcomed.

Baroness Hussein-Ece (LD): My Lords, Turkey is going through serious internal conflict, with the Government seeking to repress the independence of the judiciary and internet freedoms. Given that Chapter 23, which relates to the judiciary and fundamental rights, has remained blocked within the EU since 2009, does my noble friend the Minister not think that, even now, it would be desirable for the EU to initiate discussions on this to ensure that Turkey remains firmly anchored in Europe, and to encourage these vital reforms?

Baroness Warsi: I agree with my noble friend. She referred to Chapter 23. Chapter 24 covers justice, freedom and security. In the light of what is happening in Turkey now, it is vital that progress is made on these chapters. We are a strong advocate for progress—momentum is a priority—to deal with, if nothing else, the immediate challenges within Turkey.

Lord Howe of Aberavon (Con): My Lords, there is one substantial piece of history which I think the House would like to hear: that is, the simple fact that Turkey has been for a long time a member of the North Atlantic

5 Mar 2014 : Column 1333

Treaty Organization and the British Foreign Secretary, not just for alphabetical reasons, finds himself sitting for the United Kingdom alongside Turkey’s equivalent at all the regular meetings of that kind. I can give very strong evidence of the value of Turkey’s presence in that structure. It would certainly be beneficial to find Turkey acceding to the European Union as well. For the benefit of foreign, security and defence policy, it would be right to support the accession of Turkey into the EU.

Baroness Warsi: My noble friend makes an important point. Of course I agree with him that Turkey plays an influential role in NATO. It contributes peacekeeping troops to KFOR in Kosovo, in addition to the ISAF mission in Afghanistan. Turkey played a significant role in NATO’s mission in Libya. That shows how in many ways our interests are aligned with Turkey’s security interests.

Lord Judd (Lab): My Lords, given the critically significant geopolitical position of Turkey, would it not be very dangerous if at this stage, having started the process, any assumption were made that somehow this destination could be thwarted? At the same time, does she also agree that in coming into the Community, it is essential that Turkey should subscribe to the essence of the values of the Community, and therefore that it is necessary to be very firm with Turkey about the freedom of the press, human rights and associated issues?

Baroness Warsi: I agree with the noble Lord. Indeed, the association agreement—the approval procedure put in place in 2005—referred to the Copenhagen criteria. As the noble Lord will be aware, those criteria refer, among other things, to the rule of law, democracy and human rights. Therefore, it is important that real progress is made on these issues.

Lord Howell of Guildford (Con): My Lords, I think we all agree that Turkey has been having an uphill time in negotiations on its wish to join the European Union—or a reformed European Union—which we should certainly support. However, are not my noble friend Lord Balfe and the noble Lord, Lord Anderson, right to suggest that if, in return, Turkey could be more supportive of the Northern Cyprus Administration—who already, as the Minister said, are in a more positive mood—and of their readiness to talk with the Government of the Republic of Cyprus in the south, who are also more ready, and if at the same time it is recognised that all the vast energy resources in the area, shared together, can be a source of unity rather than disunity, we really are moving forward on Cyprus unity for the first time in 50 years?

Baroness Warsi: I can respond only by saying that I agree with the noble Lord.

Health: Midwives


3.22 pm

Asked by Baroness Cumberlege

To ask Her Majesty’s Government what is their strategy to ensure that independent midwives can continue to practise with clinical indemnity.

5 Mar 2014 : Column 1334

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, the Department of Health has been working closely with Independent Midwives UK, which represents self-employed sole-practitioner midwives, to explore possible options to secure insurance for its members. Independent Midwives UK has presented a business plan to the department seeking government funding, which has been carefully assessed. As any solution must be applicable across the UK, discussions have also taken place with the UK devolved Administrations. A decision regarding Independent Midwives UK’s proposal is imminent.

Baroness Cumberlege (Con): My Lords, I thank my noble friend for that Answer and declare my interests as listed in the register. It has occurred to me that the first person to see your Lordships in the nude is a midwife. Midwives are very special people, and independent midwives are equally so. It is a travesty that independent midwives will not be able to practise if they cannot get clinical indemnity. As my noble friend said, Independent Midwives UK has worked very closely with the department but, unfortunately, there is still a gap of £1 million, the initial pot required to get midwives clinical indemnity. Will my noble friend work very hard to ensure that he and his colleagues fund that £1 million? I have to say that, in the context of the NHS budget, which is £110 billion, it is simply short change.

Earl Howe: My Lords, I hesitate to correct my noble friend but Independent Midwives UK submitted a business proposal to the department which would require the Government to provide a £10 million grant to support the inception of an insurance scheme for its members to provide full maternity care. We have considered two options, either of which would deliver that result. The creation of any government scheme specifically for Independent Midwives UK would effectively position the Government as the underwriter of the independent sector. That is something that we have hitherto found difficult to consider.

Lord Hunt of Kings Heath (Lab): My Lords, I refer noble Lords to my health interests. It sounds to me as though the Government are perhaps going to come up with a positive outcome. Why have independent midwives been excluded from the NHS Litigation Authority’s clinical negligence scheme for trusts? Would that not be a very straightforward way of allowing independent midwives to continue and to be regulated? Clearly, one of the big issues at stake is that, without cover, it is likely that they will not receive proper registration in the future.

Earl Howe: Yes, my Lords, that would be a very simple solution but it was rejected by Independent Midwives UK when it was put to it.

Baroness Manzoor (LD): My Lords, the Royal College of Midwives says that there is a shortage of 4,800 midwives —a welcome drop from the 6,000 in recent times. However, this shortage and the shortage of obstetricians are resulting in variations in maternity services and in standards of care among trusts. What is the Government’s strategy to address these concerns?

5 Mar 2014 : Column 1335

Earl Howe: My Lords, the Government are committed to improving the choice of place of birth for women, continuity of care for mothers and the experience of care that they have. There are now 1,800 more full-time equivalent midwives than in May 2010 and there is a record number—in excess of 5,000—in training at the moment. The most recent data from November last year show that the number of midwives has increased at twice the rate of the number of births—by more than 6% since May 2010. We know that we need more midwives in the service but they are coming down the pipeline.

The Earl of Listowel (CB): My Lords, is the Minister aware of the Australian research which suggests that the NHS could save £300 per birth if it adopted the one-to-one midwifery model? Might he consider how to encourage clinical commissioning groups and health and well-being boards to commission caseload midwifery? This has proved very effective in reducing the number of episiotomies and in encouraging, for instance, breastfeeding.

Earl Howe: My Lords, I am very interested to hear what the noble Earl says about the Australian experience. The mandate that the Government issued to NHS England, published in November 2012, states that women should receive better care during pregnancy and have a named midwife responsible for ensuring personalised, one-to-one care throughout pregnancy and childbirth, as well as postnatally. As part of that, we want NHS England to work with partner organisations to ensure that women are able to make informed and safe choices about where to have their baby. However, it is probably too soon to commit to a ratio of one midwife to one expectant mother.

Baroness Gardner of Parkes (Con): My Lords, I am sure we all support the position of the midwives, but I would like to bring up the financial aspect again. Last week, we had a debate on how people would manage to finance their care in care homes and I mentioned that there are many difficulties, including the fact that no one will now give bridging finance for anything. I understand that all the midwives are asking for is contingency support to enable them eventually to run this as an independent scheme. They simply need the finance to get it off the ground. If that is the case, I remind the Minister of all the difficulties involved in raising funding for anything.

Earl Howe: My Lords, any bridging loan requires to be repaid, and that is one of the issues that we are looking at.

Baroness Wall of New Barnet (Lab): My Lords, following on from the question from the noble Earl on the Cross Benches, I am sure that the Minister is aware that most trusts—this is certainly the case in the maternity unit at Barnet hospital—now have a community midwife at the birth, and that midwife follows the mother home and stays there for as long as the mother needs support. Therefore, there is one-to-one care from a midwife, not necessarily during the delivery but certainly in the care that the mother receives when she goes home.

5 Mar 2014 : Column 1336

Earl Howe: I am very glad to hear about that. It is certainly the aspiration that every trust should have. It is important for me to point out that we are talking here about a very small number of independent self-employed sole practitioners representing less than 0.5% of the 32,000 registered midwives in England. That is the context of this debate.



3.30 pm

Asked by Baroness Jenkin of Kennington

To ask Her Majesty’s Government what plans they have to increase access to quality childcare for women in low-income households.

Baroness Northover (LD): My Lords, finding good-quality affordable childcare can be a real struggle for some families, which is why we are making reforms in three areas. We are improving availability by increasing the number of places across childminders, nurseries and schools. We are improving quality by improving staff qualifications, and simplifying and strengthening the inspection regime. We are also making childcare more affordable through the early education entitlement for two year-olds, tax-free childcare and universal credit.

Baroness Jenkin of Kennington (Con): My Lords, I thank my noble friend for that Answer. Noble Lords may not be aware that we in this country spend 1.1% of GDP on childcare—approximately double the OECD average—and yet families spend more than 26% of their income on childcare, which, again, is approximately double the OECD average. So will my noble friend confirm that as well as supporting hard pressed families, and particularly low-income families, the Government also take into account value for money for the taxpayer?

Baroness Northover: My Lords, we review very closely the effectiveness of our policies across this area and look very closely also at what is happening in other countries. We certainly recognise the importance of good-quality childcare, which is why we have sought to increase support to 15 hours a week free childcare for all three to four year-olds and for two year-olds from disadvantaged homes.

Baroness Massey of Darwen (Lab): My Lords, is the Minister aware of the report published recently by the Institute for Public Policy Research which states that where childcare is publicly funded, rates of maternal employment are higher? What can be done, therefore, about the fact that nearly half of local authorities do not have sufficient childcare places?

Baroness Northover: Yes, I have read the report to which the noble Baroness refers. It is of course extremely important that we have good-quality childcare so that the trend of mothers returning to work can continue. As for the availability of childcare places, however, we have found, using information from providers, that there are 300,000 unfilled places nationally—which is encouraging. In other words, there are places. I realise

5 Mar 2014 : Column 1337

that the information to which the noble Baroness refers comes from local authorities. One has to worry somewhat about the quality of their data when they do not square with what the providers are saying.

Lord Storey (LD): My Lords, my noble friend’s Answer to my noble friend Lady Jenkin showed the huge amount that is being done for childcare. My noble friend may be aware that recent figures show, as regards the most disadvantaged two year-olds, that there is only a 15% take-up of formal childcare provision. How can we ensure that this particular group, which is key to social mobility, takes up that opportunity?

Baroness Northover: My noble friend will know about the scheme for disadvantaged two year-olds. He might be pleased to know that only one month after launching that scheme 92,000 children have benefited. That is 70% of the deprived children who we wish to reach, which is remarkable in only one month.

Baroness Deech (CB): Is the Minister aware that in some other countries there is a system of free universal childcare and that the economic case has been made that it is worth funding such a system as it releases so many women to return to the labour market if they want, taking them off welfare and even leading to their paying taxes? Will she please consider the economics of providing free universal childcare and cutting through the Gordian knot of all the complications and difficulties that we have at the moment?

Baroness Northover: As I mentioned before, we keep under close review what happens in other countries. I remember visiting Leningrad and seeing its universal childcare when I had three children under five; they were in the UCL nursery which meant, in effect, that I had no salary. This is a long-standing problem but we are acutely aware of the importance of high-quality childcare—which I am afraid I did not see in the nurseries I visited in Leningrad—and ensuring that women are able to work.

Baroness Morgan of Ely (Lab): My Lords, does the Minister agree that childcare costs in this country have rocketed in recent years? Average costs of £7,500 per child per year for a full-time care place is more than most people spend on their mortgages. In some areas such as the West Midlands, there has been a 46% increase in childcare costs in four years. When will the Government get a grip on the situation and ensure that it is financially worth while, particularly for those with no skills, to get back into the workplace?

Baroness Northover: I pay tribute to what the previous Government did to try to focus on childcare—they did improve the quantity and quality, but they also increased the cost. In the 2000s, the cost of childcare went up enormously. I am quite encouraged that the cost has stabilised over the past couple of years. There is a difference between England, where the cost is stabilising, and Scotland and Wales, where it is not. I have all the figures here if the noble Baroness wishes to see them. It is encouraging to see that stabilisation. I realise why the previous Government were pressing forward in the way that they were, but there were costs involved in that. We have to make sure that high-quality affordable childcare is available to people.

5 Mar 2014 : Column 1338

The Earl of Listowel (CB): My Lords, at the risk of tiring the House, and in recognising the important work that the Government are doing, perhaps I may ask if the Minister shares my deep concern that—given what she just said about the importance of high-quality childcare to get the outcomes we want—the most recent Ofsted report has found that one-third of nurseries are only “satisfactory” in quality. Will the Government review the funding of entitlements for two and three year-olds? Those practising in this sector universally voice a concern that while this entitlement is welcome, it needs to be properly funded by the Government if we are to retain and recruit the best people to work with our children.

Baroness Northover: The funding is there for all three and four year-olds and for disadvantaged two year-olds. On the quality of childcare, the noble Earl is absolutely right: it is crucial. That is why we have introduced the more rigorous early years educator qualification. There are 1,000 bursaries for apprentices in this area and places for 2,300 trainees to become early years teachers.

Arrangement of Business


3.38 pm

Lord Newby (LD): As has been indicated on today’s list, the Question for Short Debate in the name of the noble Baroness, Lady Jay of Paddington, will now be taken as last business. This will extend the debate from 60 to 90 minutes, and therefore give those participating double the speaking time—from one minute to two minutes.

Supply and Appropriation (Anticipation and Adjustments) Bill

First Reading

3.38 pm

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

Co-operative and Community Benefit Societies and Credit Unions (Investigations) Regulations 2014

Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2014

Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2014

Motions to Approve

3.39 pm

Moved by Lord Newby

That the draft order and regulations laid before the House on 27 January be approved.

Relevant Document: 20th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 3 March

Motions agreed.

5 Mar 2014 : Column 1339

Warm Home Discount (Amendment) Regulations 2014

Motion to Approve

3.39 pm

Moved by Lord Gardiner of Kimble

That the draft regulations laid before the House on 27 January be approved.

Relevant Document: 19th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 3 March

Motion agreed.

Social Security (Maternity Allowance) (Participating Wife or Civil Partner of Self-employed Earner) Regulations 2014

Legal Aid (Information about Financial Resources) (Amendment) Regulations 2014

Social Security Benefits Up-rating Order 2014

Guaranteed Minimum Pensions Increase Order 2014

Motions to Approve

3.39 pm

Moved by Lord Bates

That the draft orders and regulations laid before the House on 21 and 27 January be approved.

Relevant Document: 20th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 3 March

Motions agreed.

Vocational Qualifications Reform Plan


3.40 pm

Lord Ahmad of Wimbledon (Con): My Lords, with the permission of the House, I shall repeat a Statement made in another place by my honourable friend the Minister of State for Skills and Enterprise.

“With permission, Mr Speaker, I wish to make a Statement on the publication of our reform plan for vocational qualifications, which will significantly simplify and streamline the adult skills system, alongside apprenticeship reforms. This is National Apprenticeship Week, when we celebrate the onwards march of apprenticeships and their rejuvenation and expansion. We want it to become the new norm for young people to have the choice to go either to university or into an apprenticeship.

We have set out reforms to drive up the quality of apprenticeships and to introduce new apprenticeships in areas from space engineering to nursing, and today

5 Mar 2014 : Column 1340

we set out plans to reform adult skills more broadly. This builds on the foundations provided by our reforms to schools, the introduction of tech levels and Doug Richard’s work into the future of apprenticeships. The vocational qualifications system had grown too complicated, bureaucratic and hard to understand. Even with the action taken so far, there are some 15,800 regulated qualifications in England, 11,000 of which are eligible for government funding.

By November, we will have removed more than 6,500 qualifications not valued by employers from government funding, allowing nearly £200 million of funding to be redirected towards more effective qualifications. The reforms will also: give employers greater ownership of qualification design and standards; attract funding only if they are valued by employers; and offer learners meaningful progress in employment or further learning. At the same time, Ofqual will review the way vocational qualifications are regulated. We support vocational qualifications to help people into work. So we must focus support on those qualifications that employers value.

As a result of these reforms, qualifications in subjects like self-tanning, balloon artistry and instructing pole fitness will no longer attract government funding. We will examine the current system to see whether more flexible approaches, such as payment by results, might work better, particularly when we are dealing with unemployed people just coming back into education.

The reforms will also make the qualification system easier for learners and employers to use. A new system will be developed to allow people to see what is available. Funded qualifications will need to set out their purposes clearly and in non-technical language, and new qualifications will need to demonstrate that they have business support. We will monitor their track record over time, to make sure they are delivering employment and progression, and support only those qualifications that actually deliver for learners.

High-quality apprenticeships and adult qualifications are vital to our long-term economic plan and allow all people the chance to reach their potential. I commend this Statement to the House”.

3.43 pm

Lord Young of Norwood Green (Lab): My Lords, I confess disappointment at the Statement we have just heard. As the Minister said, this is National Apprenticeship Week—something that the previous Government instituted—and I do not think this is much of a celebration in relation to how we can promote the quality and value of vocational qualifications and the quality and number of apprenticeships. The Government are going to cut funding for 5,000 adult vocational courses—they say to simplify the skills system. According to BIS, low-value courses will be cut and £200 million of the skills budget redirected toward relevant qualifications. I do not argue with the idea of employer ownership of occupational standards and qualifications but will give one warning: beware narrow frameworks which do not embrace transferrable skills. Given that the estimate of the number of times people will change their careers or employment is now seven over a working lifetime, we have to take that into account.

5 Mar 2014 : Column 1341

The Skills Funding Statement announced that the total adult skills budget is down by 9% in 2014-15 compared with the previous year and will be down by 11% in 2015-16. Over those two years, the total adult skills budget will be cut by £463 million. If we really are concerned about improving the quality and increasing the number of skills possessed by the adult population, this seems a funny way of going about it. Also of concern is, despite the fact that the Government have been questioned about this, exactly how many people will continue to be employed in the National Apprenticeship Service. How many have been laid off from that organisation?

We agree that a simplification of the further education system is long overdue, but simply cutting courses does not guarantee better quality. What are the Government doing to ensure that training standards are higher across the board? Why did they vote against an amendment proposed by our party to the deregulation Bill calling for all apprenticeships to be level 3 qualifications? Currently, two-thirds of apprenticeships are level 2 qualifications. What will the Government do to address the massive lack of employer demand for apprenticeships, something that I have raised again and again and never received a satisfactory reply? Only 8% of employers in England offer apprenticeships compared with more than a third in our main competitor countries in northern Europe. Why oh why do the Government not demonstrate their commitment by insisting that all public procurement contracts of a reasonable size should carry a requirement to run apprenticeships? We did it. When I attended the Crossrail apprentices awards ceremony yesterday, I saw that the company now has 283 apprenticeships and is progressing towards the 400 that we insisted it should have. I have never had a satisfactory answer from the Minister. Do not tell us that there are legal barriers because we managed to do it.

What will the Government do to ensure better quality teaching in further education? This Government have downgraded the training requirements for FE lecturers. They no longer need any form of teaching qualification and are not required to have attained English and maths to even a basic level. That is why the Husbands review recommended that all further education lecturers should hold a teaching qualification at level 2 or above in English and maths.

The Statement today is tinkering at the edges. We need a radical overhaul of the skills system, and that is why Labour’s Skills Taskforce has set out recommendations that will reinvigorate FE providers as specialist institutes of technical education characterised by high standards of teaching and strong links to employers across the local and regional labour market. We need safeguards to ensure that we do not neglect the social value of courses. David Hughes, head of the National Institute for Adult Continuing Education, has pointed out that some “low value” courses have a role to play in that they can be a re-entry point for adults with low skills, those who have recently been made redundant or those who have suffered ill health.

After four years of downgrading vocational education, it seems that the Government are desperately trying to play catch-up. Their ambivalence towards vocational

5 Mar 2014 : Column 1342

education shows a shocking complacency about the challenges we face as a country, with the number of 16 to 18 year-olds in education or training having fallen by 19,200 in the past year. Instead of a few warm words, Ministers should really be backing Labour’s plan for young people with new specialist institutes of technical education, a rigorous route to a technical baccalaureate, accredited vocational qualifications, more high-quality apprenticeships, and skills and careers advice. On careers advice, I still find it depressing that when I go into secondary schools as part of the Lords outreach programme and ask young people coming into the sixth form what they have been recommended to do, there is still only one direction in which they are being pushed. For the vast majority of them it is to study A-levels. When I ask them what they know about apprenticeships, never mind space apprenticeships, I might as well ask them if they are embarking on the next trip to Mars.

Schools are not fulfilling their legal requirement to give a wide range of career guidance, which should embrace vocational qualifications and apprenticeships. The Government should be insisting that every school does that—that every school invites businesses in and invites young apprentices back so that pupils can see them as role models. It is unfortunate that in National Apprenticeship Week, when the Government had an opportunity to make some real, valuable changes, they have missed that opportunity.

3.50 pm

Lord Ahmad of Wimbledon: My Lords, the picture painted by the noble Lord, Lord Young, is not something that I recognise. Here we are at a time of record new apprenticeships. Since 2010 we have seen more than 1.6 million apprenticeship starts. This year alone we have seen a record 168,000 new apprenticeships. The noble Lord himself is a very successful example of how apprenticeships work but the picture he paints is not something that I or the Government recognise.

It is National Apprenticeship Week and I am sure that many a noble Lord who has opened up a newspaper —even the local Metro, which is a free newspaper—will have seen a plethora of adverts taken out by employers encouraging apprenticeships. That is something that we should all welcome.

I will pick up on some of the specific points raised by the noble Lord, Lord Young. First, he mentioned employer demand. I have already dealt with that. When you look at the record number of apprenticeship starts, surely the proof is in the pudding: the number of apprenticeships that are being taken up. Recently, as I am sure the noble Lord is fully aware, we announced the Trailblazers scheme across eight different sectors. That has been taken up by a vast range of employers, such as National Grid. Later this year that will be extended in the second phase to include another 29 sectors and another 345 employers. That is progression, a way forward.

I am quite happy to talk to the noble Lord after this Statement and I hope he will share some of his experiences to ensure that this policy works for our future generations. I agree with him on some of the issues he raised, quite pertinently and appropriately, about careers advice.

5 Mar 2014 : Column 1343

There is an important role for schools to play to ensure joined-up thinking at all levels. I am sure that the noble Lord and other noble Lords are aware that my right honourable friend the Deputy Prime Minister announced only last week a scheme that we are considering: a UCAS-style points system whereby apprenticeships are an alternative way forward alongside universities. That is another thing that we are throwing into the mix and will be specifically looking at.

The noble Lord touched on a point that I totally adhere to. Since I have picked up this brief, I have become aware of the vital importance of mentoring. Mentoring does not mean just picking and choosing people in a firm when an apprentice joins, but someone who can work with that individual on all elements of their working life, including the basic skills—I am sure anyone who has been in the position of employer recognises the fact that the basic skills are sometimes missing, such as the ability to turn up on time and do a full day’s work. We also need to focus on these basic skills to ensure that our young people have all the opportunities and routes available to them in the years ahead.

I hope that the noble Lord will reflect on some of the comments I have made and welcome this Statement.

3.53 pm

Lord Cormack (Con): My Lords, there is a national shortage of engineers. What are we doing to encourage young people to take up engineering apprenticeships? There is not a national shortage of hairdressers, yet there are far more training opportunities than there are jobs available. In the field about which I know a little, the crafts, we are not doing enough to encourage crafts men and women to take on apprenticeships. We are not doing enough to show that there are richly fulfilling careers in the crafts. I hope that my noble friend will be able to flesh out the Statement a bit so that we can derive some more encouragement from it than I have been able to derive this afternoon.

Lord Ahmad of Wimbledon: My noble friend always speaks with great expertise on several areas. He has done so again in drawing attention to this issue. As he asked, I will pan out on this and reassure him. On the issue of engineering, he will recall that I mentioned Trailblazers in response to the question of the noble Lord, Lord Young. The 29 additional industries and sectors we will look at include various elements of engineering, including civil engineering and rail. That will be led by organisations that include Jacobs Engineering, Atkins, CH2M Hill and Hyder Consulting. My noble friend also talked about crafts. That is another sector that will be covered by the second phase of the Trailblazer scheme. It will be led by organisations including the Victoria and Albert Museum, Cockpit Arts and the Mulberry Tree Woodturnery. I hope my noble friend is assured that, as I said earlier, across these 29 sectors 345 employers have now demonstrated their willingness to be part and parcel of this scheme.

Baroness Wall of New Barnet (Lab): My Lords, I raise in particular the advanced apprenticeship in health, which I am steering through the round-table discussion

5 Mar 2014 : Column 1344

that has been going on—I am not sure if the noble Lord is aware of it—working with all the unions and legislation bodies in nursing. We are still having this debate and it is very new; we have had one round-table discussion on nursing. We agreed that we would launch it as a Trailblazer but with the reservation that we are still doing a lot of work. Our next meeting is in two weeks’ time. I wonder why the document insists that the apprenticeship route will get to a stage where it must be university driven. In fact, we have talked to FE colleges, which do all the other apprenticeship and higher level stuff. Why can we not ensure that we have that opportunity? Certainly, that is the discussion we had in the round table. Maybe this is an early Statement and will change, but it needs to reflect that we have FE colleges working with our apprenticeship nurses.

Lord Ahmad of Wimbledon: I of course pay tribute to the noble Baroness’s work in this respect. It is exactly as she said: round-table discussions are taking place. We want to see what works effectively for all sectors. I certainly take on board her comments. I am sure that issue will be taken on board as we move the nursing element of these Trailblazer schemes forward.

Lord Martin of Springburn (CB): My Lords, the Minister is quite right about the value of mentoring. In a factory where a young person learns an apprenticeship, it is often the older tradesmen who teach the youngster about life as well as the trade he learns. My thoughts go to a young person living, say, in Inverness who is keen to follow an aero-engine career in engineering in Derby. If that young person was going to a university there would be a college of residence but that is not the case for apprentices. Could the Government look into the possibility that where a young person is obliged to travel away from their home, help is given to find them accommodation—perhaps even in a university residence?

Lord Ahmad of Wimbledon: The noble Lord again makes a very valid contribution. I have already alluded to the importance of mentoring. It is something we do not at the moment emphasise enough. There is an old adage: I remember my late father always talked about how “old is gold”. When it comes to mentoring, that is certainly true.

The Lord Bishop of Chester: My Lords, I warmly welcome the Statement in its intention. Clearly there needs to be a greater focus on vocational qualifications in FE but the danger is that the move towards focusing ends up with narrowness. I think that was the concern expressed by the noble Lord, Lord Young, in his response. Indeed, we just heard of the need to learn about life as well as a particular skill.

The Minister referred to basic skills. There are a range of soft skills that employers value and that lead to a qualification being transferable. The skills that people learn in their vocational qualification often have to mutate or adapt into other skills. Can we have an assurance that in drawing up the curricula and requirements there is not too much instrumentalism—or payment by results, as is in the Statement—but rather that we do not lose sight of that broader purpose of education?

5 Mar 2014 : Column 1345

Lord Ahmad of Wimbledon: Again, it will suffice for me to say that the right reverend Prelate also makes very valid points. The intention here is not to narrow the field but to get the funding focused on exactly what employers require. As part of that training, of course the softer skills are important. This will not result in a cut in the overall funding that the Government are providing; it will result in better focused funding. Indeed, certain courses which have been cut had no take-up whatever. That does not mean that there are not some courses which only a few people take up; that should not demean the importance of those courses, and the Government are fully on board with that.

The Earl of Listowel (CB): I welcome what the Minister said, and hope not to tire the House. Is he aware of the work by National Grid in mentoring more than 2,000 young offenders over the past 10 years, helping those young people into work and reducing the reoffending rate from 70% to well below 7%? Its experience is that such young people can become very loyal employees who rise more quickly through the system because of their ambition and drive, and because they are grateful for the support that they have had for National Grid. If it is in order, perhaps I can ask another quick question: with regard to public contracts, I recognise that the Minister will not want to overburden business, but given the need to act in that area, will he look at whether public contracts should involve requirements that businesses should have a certain number of apprentices?

Lord Ahmad of Wimbledon: I thank the noble Earl for his contribution. Of course, he will be aware that one of the other hats that I wear is in my engagement and involvement in the justice department, and with offender rehabilitation when the Bill was making progress through the House and subsequently. I am fully aware of the National Grid scheme. The noble Earl is right to outline its importance and the benefits that it brings. We hope that such schemes can also assist those young people who, unfortunately, have fallen on the wrong side of the law. We can assist in bringing them back to become productive citizens both for themselves and for society at large.

On the final point, I am aware of many a local scheme where employers are fully inputting into the services that they provide as part of the contracts. I recall from my own patch when I was a local councillor in Merton that there was a very good initiative called Take One where, working with the local chamber of commerce, we encouraged both small and medium-sized businesses locally to take on an apprentice or someone on work placement. That is having a very good effect; I think it is achieving rates of 93% of people who are in education or training in the borough, which shows that local schemes have a very good effect.

Lord Stoneham of Droxford (LD): My Lords, the House may feel that those on the opposition Benches could be a little more generous and accepting of one of the most significant achievements of this Government. It is not only the doubling of apprenticeships which has been achieved, building on the foundations laid by the Labour Government; fundamental equality

5 Mar 2014 : Column 1346

issues have also been addressed. We should recognise as a House the popularity of the expansion of those apprenticeships with young people, parents, employers and the public at large. It is good to see the big apprenticeship schemes for BT, Land Rover and Nissan now being almost more competitive than Oxbridge entry. That is a remarkable change in the quality, status and number of apprenticeships.

I should like to ask my noble friend several questions building on that. What efforts are the Government making to counter the slight fall-off in apprenticeships for 16 to 18 year-olds, and are they doing enough to help those with learning difficulties, who could be naturals for apprenticeships but can be put off by rigid academic standards? In those efforts, can the Minister counter the rumour that the Government are looking to increase the training cost contributions by employers to apprenticeship training to 50% for 18 and 19 year-olds? Finally, are the sector skills councils fully involved in the development of those new qualifications? There is a danger that qualifications too customised for specific employers will lead to a multiplication, not a simplification, of the number of qualifications.

Lord Ahmad of Wimbledon: I thank my noble friend for his support for what the Government are doing. The issues regarding 16 to 18 year-olds and learning disabilities are both very valid points. In that context, those have certainly come across as part of the review of apprenticeships and of the schemes on vocational training. I also remember, having been an employer as well in this regard, the importance of the need to have maths and English at a basic GCSE level. By September this year, if a 16 year-old has not achieved those qualifications, they will be supported until they achieve those two basic pillars. Regarding the 50% issue which my noble friend raises, perhaps I might write to him specifically on that.

As far as the sector skills councils are concerned they, along with other professional bodies, will be developing these skills. As the noble Baroness, Lady Wall, pointed out concerning nursing, all relevant interested parties and professional bodies are part of this review, ensuring that the qualifications which emerge from this will work specifically for not just the employers but the sector and, most importantly, for the individual. This is about ensuring long-term sustainability of employment. Finally, on funding, there is a consultation document which we are hoping to publish in due course.

Lord Howarth of Newport (Lab): My Lords, again and again over the past 50 years, Governments have announced shiny new policies for further education. Each time, we have been promised that there would be parity of esteem between vocational and academic education, that there would be an end to the chaos of poor quality qualifications and that we would finally overcome the legacy of poor quality technical education, which goes all the way back to the 19th century. Each time the performance has fallen far short of the promise. I do not mean to be ungenerous in my tone but will the Minister give us some reasons to expect that, this time, the result will be better than in the past?

5 Mar 2014 : Column 1347

Lord Ahmad of Wimbledon: On a lighter note, when the noble Lord said “This time”, I was reminded of an England football song from back in 1982. It was called “This Time (We’ll Get It Right)”. I cannot give that guarantee or assurance but I certainly recognise the picture that the noble Lord paints. Time and again, I am sure that each Government have had noble intent to ensure that there was a level of parity in terms of access and progress, whether one takes an academic or a vocational route. We feel that this increased focus on vocational qualifications, together with that on apprenticeship, and an increased take-up from employers across the country and the sectors, will certainly benefit those wishing to engage in this area.

I hope that all noble Lords are assured that this is about an ongoing discussion and ensuring that all those engaged in the sector are part and parcel of that discussion, both in terms of the apprenticeships that we offer and, more importantly, in the vocational training and education which is on offer. That is to ensure, as I have said, that it works for the individual in terms of their future employment prospects.

Baroness Shephard of Northwold (Con): My Lords, might I press my noble friend a little more on the question raised by the noble Lord, Lord Young, on careers advice in its widest meaning? I welcome the Statement today, of course, but I am sure that my noble friend accepts that this is another layer of confusing rearrangement for the young people whom it is meant to benefit. What interest are my noble friend and his department taking in the great importance of conveying the number of opportunities that are open to our young people? Are they listening to their responses and hearing the difficulty that they may have in accessing apprenticeships, for example? This is a whole tranche of work which, if it is not addressed, may well remove from so many deserving and able young people the very chances that the Government wish to give to them.

Lord Ahmad of Wimbledon: My noble friend speaks with great experience in this regard, particularly about the education sector. I agree with her, as I agree with the noble Lord, Lord Young: more needs to be done effectively in schools in terms of career advice. I know that my right honourable friend the Secretary of State for Education is today in a college talking through some of the opportunities that are available to young people in terms not just of academic choices but of vocational and career choices.

My noble friend talked of increased confusion. We hope that, by lessening the number of courses and then making funding available focused on the courses that employers wish to see, the opportunities will be greater. However, the point that she makes is a valid one, and more work needs to be done. BIS and the Department for Education are working together to ensure that our careers services in schools reflect the opportunities and indeed the initiatives that the Government are taking forward.

Lord Morris of Handsworth (Lab): My Lords, so far the Statement has concentrated on youth apprenticeships up to the age of 18, and it is right that we should. However, what plans, if any, do the Government have

5 Mar 2014 : Column 1348

for adult apprenticeship—that is, for people over the age of 18 who want to get back into the economy, earning and learning?

Lord Ahmad of Wimbledon: The noble Lord makes a valid point about adult education. Again, our announcements today reflect that these vocational qualifications across the sectors, as I have already indicated, are not just specific to people within that 16 to 19 age group. There are additional issues to consider, which he rightly raises. There are issues of apprehension for someone such as a lady—my own wife is a very good example of this—who takes a career break because of young children; it has to be ensured that they are up to speed with developments in their own profession when they seek to return to it. There has to be a greater focus from both the Government and, more importantly, employers in ensuring that those opportunities are available. However, I assure the noble Lord that the current Trailblazer schemes that I talked of, which are in phase 1 and phase 2, cover all age groups, not just the 16 to 19 year-olds.

Lord Ramsbotham (CB): My Lords, will the Minister confirm that the new vocational qualifications will be used as the basis of a provision in the new secure colleges that are proposed by the Ministry of Justice?

Lord Ahmad of Wimbledon: If I may, I will write to the noble Lord specifically on that. As I commented earlier, the issue of the rehabilitation of offenders and young people who have fallen victim to crime who now wish to get themselves back on their feet is one of connectivity.

Lord Brooke of Alverthorpe (Lab): My Lords, it would be churlish not to acknowledge that the Government have substantially increased the number of apprenticeships since they came into power. I am a member of European Union Sub-Committee B, which is currently undertaking a review of a directive that is coming on unemployment for young people. We have been taking a substantial amount of evidence in this country. Would the Minister be interested to hear that a substantial number of people are concerned about the quality of some of those apprenticeship schemes that have been introduced? It is vital that we do not just look at numbers but start to look at the quality of what people are being trained in.

Secondly, would the Minister be interested to hear, to pick up the point made by the noble Baroness, Lady Shephard, that many people are saying that many youngsters are falling through the net and know nothing whatever about apprenticeships? Indeed, we were presented with evidence, which will be published shortly, that only one in five children between 14 and 16 years of age even knows what apprenticeships are. Ofsted has criticised what has been happening. Steps have been taken—the Minister says that it is now in the law that they should respond at school level to draw apprenticeships to children’s attention—but this is not good enough. To pick up the point made by the noble Lord, Lord Cormack, we need some more flesh on the bones to see how this policy can be put in place. Will the

5 Mar 2014 : Column 1349

Minister ensure that we make certain that people know about apprenticeships as well as seeking employers to provide them?

Lord Ahmad of Wimbledon: Bearing in mind the time, I totally concur on the second point. I hope that I have already indicated that I shall be taking many of the comments made today back to the Department for Business, Innovation and Skills as well as to the Department for Education. I am sure that there is a range of initiatives, including perhaps promotions and greater advertising of opportunities available through apprenticeships. I also concur with the noble Lord’s comment about quality over quantity. That is why I emphasise again that in the second Trailblazer project we have 29 more industry sectors coming online, with 345 employers. The apprenticeship document that has been produced emphasises quality over quantity.

Immigration Bill

Committee (2nd Day)

4.15 pm

Relevant documents: 22nd Report from the Delegated Powers Committee, 8th and 12th Report from the Joint Committee on Human Rights.

Amendment 30

Moved by Baroness Hamwee

30: After Clause 11, insert the following new Clause—

“Administrative review

(1) Section 11 shall not come into force until a draft of an instrument making provision for the conduct of the review of decisions the subject of that section has been laid before each House of Parliament and approved by each House of Parliament.

(2) Provision under the instrument shall include—

(a) procedures for reviews to be agreed by independent persons;

(b) oversight of reviews by an independent person;

(c) reports to Parliament by the independent person.

(3) Section 11 shall lapse five years after the date it comes into force unless it is continued by an order made by the Secretary of State subject to annulment in pursuance of a resolution of either House of Parliament.”

Baroness Hamwee (LD): My Lords, Amendment 30 is about administrative review. I am not commenting on the reduction in rights of appeal per se, but if we are to see a reduction of the basis of appeals, and if they are to be reduced on the basis of the use of administrative review, the procedure must be robust and trusted. However much we hear that it will be robust—I have seen the statement of intent—it is fair to say that critics have not been won over. Many noble Lords will have received briefings, including examples of reviews previously undertaken under different—but not so very different—procedures, and I shall give a couple of them to the Committee.

The first is a student applying to transfer his tier 4 leave to a new passport. The university provided letters quoting the relevant Home Office guidance confirming that a new certificate of acceptance for studies was not required because it was not a fresh application, merely a transfer to a new passport, but the application was

5 Mar 2014 : Column 1350

refused on the grounds that the student did not have a valid certificate. He applied for administrative review. He was outside the UK and needed to be back here quickly to get on with his studies. He waited a couple of weeks and then decided he had to submit a fresh application. The review upheld the original decision on the grounds that he did not have a valid certificate.

My second example is a student applying for leave for a master’s course after having studied as an undergraduate in the UK and undertaken two years of tier 1 post-study work leave. The application was refused because the case officer thought that the five-year limit on degree-level study would be exceeded, taking into account the two years, but in fact the case worker had incorrectly included the two years of post-study work. Reconsideration was requested, but the casework team would not overturn the refusal.

The point that decisions should be got right the first time is entirely reasonable and appropriate, and I am sure my noble friend accepts that. One can also entirely understand the point that reviewing colleagues’ work as a substitute for appeal is counterintuitive. Not only are colleagues being asked to attack, as it were, their colleagues’ work, but they are actually attacking the Secretary of State’s decision. One can understand their diffidence in doing so.

The amendment I propose does not seek not to have administrative review; it seeks to find a way to get procedures into a document that will require the approval of both Houses of Parliament. This might sound a rather heavy-handed way of going about something administrative, but we are talking about a proposed substitute for appeals. The amendment seeks to have procedures agreed by an independent person—I stress the term “independent”—with oversight of reviews as they take place by an independent person and a lapse after five years unless Parliament thinks that the procedures are suitable to be continued. This would be negative.

I am aware that the Home Office proposes that the process which it plans will be included—or, at any rate, it will ask for it to be included—in the chief inspector’s reviews. That is necessary, but I am seeking more than that. I have not tried to define “independent” in the amendment, but I do mean independent. There are in many parts of our legislation provisions for independent persons. By and large, the people who are appointed are independent. Once they have been given a remit, they tend to prove themselves really very independent and sometimes quite forthright.

I have comments on the statement of intent that was included in the bundle which was helpfully circulated. I am not going to take up the Committee’s time on that, other than to say that I note that the time limit for the applicant to seek an administrative review is 10 days, or two days if they are in detention—which seems to be very little if they want to take advice. I wonder how the Home Office will ensure that the limit of 28 days to come to a decision will be met, given the current timescales of which we are aware. I wonder, too, whether my noble friend can explain what opportunity there will be for an applicant—the “customer”, as he is called in the statement—to make representations on the facts to the reviewer.

5 Mar 2014 : Column 1351

However, that is not at the heart of this amendment. When I raised the issue of trying to stiffen the arrangements for reviews with those who work in the field, they said that when the issue had been discussed in 2006, when the House was talking about out-of-country reviews, administrative review became a “chimera” chased through many hours of debate, a “red herring”, and a “scarlet pimpernel”. We do not have a “smokescreen” in there; I will not pursue what other metaphors there might be. I thought that that was harsh, but it is important that we have reassurances on how we are going to have real detail on this that both Houses can consider.

In the statement of intent, in answer to the question of how it can be confident that it will be able to operate administrative review effectively, the Home Office referred to the current operation overseas—where there is a strong record, with over 90% of reviews completed within the target of 28 days for the quarter in question—and said that administrative review also makes a difference in entry clearance cases: in 2012, the initial decision was overturned in 21% of cases. I think that my noble friend would understand that some of this is in the eye of the beholder. It rather depends on whether you are the applicant as to how you perceive this. I note that success is expressed here in terms of time limits rather than substance. I suppose we could really know if administrative review is working well only if it were possible to run it as a sort of shadow to the appeals process—but we cannot, to my mind anyway, run two systems in parallel.

Therefore, the amendment focuses on how to get as robust and trusted a system as possible. Having said that—this is a trite point but it needs to be made again at this point in the debate, and I am sure that my noble friend will agree—there should be a robust, trusted system of internal review in any event, because this is about making the right decision as efficiently, effectively and quickly as possible. I beg to move.

Lord Paddick (LD): My Lords, I support Amendment 30, at least in principle. I support the move that the Government are trying to make to avoid abuse of the system of appeals, whether by unscrupulous organisations which try to make money from endless and inevitably futile appeals that exploit not only the taxpayer but also the applicant, or by those who are not entitled to be here or come here but who want to exploit the system in order to extend their stay, despite not having legitimate grounds to stay. However, before I can support removal of the right to a judicial tribunal appeal, I would ask the Minister for reassurance that the proposed replacement with an administrative review will provide an equally reliable route of appeal.

My noble friend Lady Williams of Crosby and I share a common concern about the culture within the Home Office to which my noble friend Lady Hamwee alluded—that it would be very difficult for an officer in the Home Office, particularly someone of equal grade to the original reviewing officer, to overturn a decision made by their colleague. Perhaps I can help the House with a definition of “independent”, to which my noble friend Lady Hamwee refers in this amendment. Nobody can be a commissioner of the

5 Mar 2014 : Column 1352

Independent Police Complaints Commission if they have previously been a sworn police officer. One would expect a completely independent person who reviews these decisions to be somebody who has not been and is not currently a member of the Home Office.

Under the current system, even when the presenting officer for the Home Office at the judicial tribunal has reviewed the case, a high proportion of those appeals are still successful. Can the Minister tell us how the new system of administrative review will differ from that, and, therefore, give us more confidence that it will be far more effective than the current one? Of course, decisions made under the new administrative review system can still be challenged by judicial review with an appeal to the High Court. Can the Minister reassure us that this route will not be even more expensive than the current judicial review process; or, bearing in mind the recent cuts in legal aid, does the Minister believe that far fewer people will be able to afford to go down that judicial appeal route?

In short, I am not in principle against the new system of administrative review if—but only if—the Minister can reassure the House that it will be far more effective than the current system in achieving swift and just outcomes for applicants. Neither does my noble friend Lady Hamwee call in her amendment for an abandonment of the new system. In the absence of the Minister being able to convince the House on the matters that I have raised, perhaps it would be better for him simply to support my noble friend’s amendment.

4.30 pm

Lord Avebury (LD): I am concerned that the reduction in the number of immigration decisions that can be appealed from 17 to four, as the Bill intends, may lead to injustice and that the administrative review system which is to be substituted for the right to appeal to the First-tier Tribunal in those cases is manifestly unfit for purpose in making decisions that can fundamentally affect the whole course of an appellant’s life. As my noble friend Lord Paddick says, in all the cases where there is an appeal at present, the file goes to the presenting officer, who conducts the case before the tribunal. That official is in a more senior grade than the executive officer who made the original decision, which may be a partial reassurance to my noble friend; that person conducts an administrative review, which can lead to the refusal being withdrawn, and does so in a small proportion of cases. However, following this process, the Home Office loses half its appeals. It has to be assumed, therefore, that half the cases that go through administrative review as a result of this Bill are likely to be wrongly decided against the applicant.

The injured applicant can still make an appeal on human rights grounds, some of which are eligible for legal aid, and it is expected that quite a few will do so, cancelling out, as my noble friend hints, some of the savings that the Government hope to achieve by restricting the common law right of access to the courts. There will also be applications for judicial review, although legal aid for that purpose will be available only in a limited set of cases, including some but not all refugees, but excluding trafficked persons and victims of domestic violence. Does the net saving of £219 million over 10 years, which is expected according to the Home

5 Mar 2014 : Column 1353

Office briefing, take into account the estimated costs of these appeals, and can my noble friend give us the figure?

The briefing says that the service standard will be to complete the administrative review within 28 days. That is the existing service standard, but when the chief inspector looked at the visa section at Amman it was found that the average time taken was 74 days. The statement of intent may say that we look to achieve the standard of 28 days, but it has not been done in the past. Although I dare say that there has been some improvement since the chief inspector visited Amman, it is doubtful whether the system will be able to keep up with the additional 40,000 cases a year without extra staff and extra training, for which I assume that allowance has been made in the arithmetic. I would be grateful for reassurance on that point. What about the half a million backlog identified by the Home Affairs Select Committee? Are they entitled to an administrative review and have the Government considered how they will deal with the additional cases that will arise when landlords, university staff and health workers are pressed into service as ancillary immigration officers?

Administrative review is a way not of securing fairness and justice for immigrants who are refused leave to enter or remain, but of reducing the number who would have succeeded if they had been able to put their case to the tribunal. It may not even result in any saving of public funds. The right way to achieve both those objectives would be, as my noble friend Lady Hamwee said, to tighten up on the training and supervision of the case workers who make the original decisions so that they get it right first time. That should have been the aim; then we would not even have thought about depriving people of their legitimate rights. At the very least, we should give the Home Office the chance to prove that administrative reviews can be made effective by the means proposed in this amendment. If it can be shown that the existing prehearing reviews pick up wrong decisions, it is well and good; but if the outcome is simply to confirm that reviews are no substitute for the judicial process, Clause 11 should not come into force.

Baroness Manzoor (LD): My Lords, I support my noble friends Lady Hamwee, Lord Paddick and Lord Avebury, and align myself with the comments that they made regarding a robust and independent review. As the previous Legal Services Ombudsman and Legal Services Complaints Commissioner, I know the importance of this. It is imperative that the administrative review is not only independent but is seen to be independent for people to have confidence in the decision. I give your Lordships this analogy: a manager of a football team does not referee a game in which his own team is playing.

Baroness Smith of Basildon (Lab): My Lords, it is an indication of the discontent with Clause 11 that this is the second debate we have had on it. We had an interesting and lengthy debate on Clause 11 on Monday in relation to the principle of the Government’s proposals, and on our amendments and those of the noble Lord, Lord Hannay. Noble Lords may recall our strong

5 Mar 2014 : Column 1354

opposition to the Government’s proposals to remove appeals in the way they are seeking to do. I will not repeat all the arguments that I made on Monday, other than where they are relevant to this amendment. However, for the convenience of the Committee, my comments are recorded at cols. 1178-81 of Monday’s



Originally, Amendment 30, in the name of the noble Baroness, Lady Hamwee, was grouped with others on appeals, including a not dissimilar one from myself, Amendment 27, which in some ways is like a sunrise clause to review and improve the current position before any further moves are taken to change the system to administrative review, although we were more specific as regards using the expertise of the Chief Inspector of Borders and Immigration. That is not particularly significant at this stage; both amendments were tabled in response to the existing problems in the system, whereby a very high proportion of the decisions appealed succeed, and an even higher proportion of those are down to casework errors. Therefore, I have no difficulty whatever in supporting the principle of this amendment, although I had hoped that the noble Baroness would support the principle of my amendment when I spoke to it on Monday evening. I recall that no noble Lords present commented on our amendments in that debate other than the noble Baroness, Lady Lister, perhaps because she has degrouped her amendment today as she wants a separate debate on it, even though the principle involved is very similar.

I repeat the broader point that we made on Monday and invite the noble Baroness to comment on our very real and genuine concerns about, not just the detail, but the principle of the Government’s proposals. We can all sign up to a process that gives timely, accurate decisions, and a swift process to address any errors. I do not think there is any dissent around those principles. However, if we take this clause in context, that is not what it does.

On Monday, we also moved a Motion that this clause does not stand part of the Bill. That device is often used to give your Lordships’ House the opportunity to have a broader debate around the principles of an issue. However, I also made it clear that removing the clause entirely would be our preference given the current position and the quality of decisions that are taken. Failing that, our Amendment 27 addressed exactly the same principle as that in the amendment proposed by the noble Baroness, Lady Hamwee, today. I also spoke to our Amendments 28 and 29 regarding an impact assessment and a review.

Our concerns about this clause and the proposal for administrative review go deep and are not confined to any individual group who would be affected—a lot of the debate on Monday evening centred on students—as this goes wider and would affect everybody who applies for review. The right to appeal is a fundamental principle of British law. As I say, we support a process that gives timely, accurate decisions, and a swift process to address any errors. We believe that such a decision should be challengeable and that recourse should be available.

However, as I explained on Monday and as other noble Lords have said today, the necessity for appeals is even more essential when we know how flawed the

5 Mar 2014 : Column 1355

current system is. It is well documented that the department is already struggling to deliver a quality service and that there are huge casework backlogs, to which the noble Lord, Lord Paddick, referred. I provided details of the backlog of shocking cases regarding the length of time for which people are waiting for decisions to be made. More important is the quality of decision-making. The figures reveal that 32% of deportation decisions, 49% of managed migration decisions relating to work and students and 49% of entry clearance applications were successfully appealed last year. Despite the fact, rather surprisingly, that there are no official data from the Government, a Home Office sampling exercise revealed that 60% of the volume of appeals allowed are due to caseworking errors. That means that almost 30% of all appeals—60% of the 49%—are allowed due to caseworking errors.

When so many decisions are found to be flawed, should we really be trying to remove the current routes for appeal and replace them with administrative reviews? I asked the Minister when the sampling exercise was undertaken and over what period of time. I know that he could not reply on Monday. If he is able to do so today or write to me, it would be helpful.

The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD): I think that I did reply, if the noble Baroness looks at the Official Report. I said that it was between April and June 2013.

Baroness Smith of Basildon: That is really helpful and I apologise. I shall reread Hansard. I am sure that I did not doze off at that point.

As other noble Lords have said, we should focus on improving the efficiency of those initial decisions and making sure there is little need for appeals in the first place, because that is what will create confidence in the system, which itself will reduce the number of appeals. I am raising these points again now because it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging this inefficiency. I know the Minister pointed to an administrative review, but we have heard strong arguments today and previously that that is not the way forward. He said that the person reviewing the decision will not be the person who made the original decision but a cohort of immigration staff drawn from those who already make decisions. However, my understanding is that the Home Office already has a system whereby, in some cases, senior staff already review certain decisions. I cannot, therefore, see how an administrative review would be particularly significant if a number of decisions are currently overseen and reviewed by senior staff. Given the very high proportion of appeals allowed, which in most cases result from caseworking errors, it is clear that this problem with the quality of decision-making has to be addressed. Should that not be looked at by someone who is completely independent for there to be a real confidence in the system?

The noble Lord, Lord Avebury, raised the issue of the Government’s reliance on judicial reviews as recourse. A number of noble Lords today and previously have raised concerns about the cost. Not only do judicial

5 Mar 2014 : Column 1356

reviews cost more than appeals but costs can be sought from the other party, and damages may be claimed but the Government have to recognise—indeed, they do so in their assessments—that the number of judicial reviews is likely to increase. The noble and learned Lord will be aware of the comments by the Joint Committee on Human Rights that the Government’s proposals on judicial reviews do not take into account the committee’s comments and do not look at how,

“the Government’s other proposals to reform both legal aid and judicial review itself”,

impact on the ability to seek judicial review.

I can understand why the noble Baroness has brought forward her proposal but I do not really understand why it had to be a stand-alone debate, considering that we had a similar debate on Monday, when her points could have been made. I see that the noble and learned Lord agrees. However, there is a strong case to oppose this clause as a whole, and I see this amendment, which is similar in principle to our proposal on Monday, as a fallback position and not the solution. I also hope that the Minister will recognise that there are great concerns about the principle and implementation of the Government’s proposals, and will look at them again, given that there have now been two lengthy debates on this issue.

Baroness Hamwee: My Lords, before my noble and learned friend responds, perhaps I may make it clear—I thought I had at the start of this debate—that I am not seeking to debate Clause 11. This amendment proposes inserting a separate clause after Clause 11 and is intended to be constructive on administrative review, not destructive of Clause 11.

4.45 pm

Lord Wallace of Tankerness: My Lords, I thank my noble friend Lady Hamwee for tabling this amendment. She described it as being a self-standing amendment outwith Clause 11. However, it would delay the commencement of Clause 11 until such time as an instrument which provided for the conduct of administrative review had been approved by both Houses of Parliament. The proposed new clause also seeks to include within that instrument provision for procedures for administrative review to be agreed by independent persons, for oversight of those reviews by an independent person and for that independent person to report to Parliament. The proposed new clause also provides that Clause 11 should lapse after five years unless an order for it to continue in force is laid and not annulled by either House of Parliament.

The process governing administrative review will be set out in the Immigration Rules. There is no power in this Bill to make an order that will set out the administrative review procedure. Furthermore, as I have said, the administrative review procedure will be set out in the Immigration Rules prepared under the power in Section 3(2) of the Immigration Act 1971. The procedure under that Act provides that the Immigration Rules are laid before Parliament. Either House may seek a debate on those rules and pass a resolution disapproving of the changes proposed. Such a resolution would require the Secretary of State to lay

5 Mar 2014 : Column 1357

further rules within 40 days. This procedure provides for parliamentary scrutiny of the process for administrative review, so there will be an opportunity for your Lordships’ House, if it so wishes, to scrutinise the process for administrative review, and indeed there will be an opportunity for Parliament to seek changes to that process. Therefore, I believe that it is unnecessary to seek an amendment to the Bill that provides for parliamentary scrutiny and approval of the rules governing the administrative review process. The process for scrutinising the Immigration Rules already provides for that.

However, I fully accept that there are concerns about the requirements relating to the administrative review process. Those concerns were expressed by the noble Baroness, Lady Smith, in our debates on Monday and are indicated by the new clause proposed by my noble friend and in the comments of a number of other of my noble friends. The safeguards sought are that the administrative review procedure should be agreed with an independent person, that there should be oversight of reviews by an independent person and that that independent person should report to Parliament.

It is our view that the administrative review procedure is best developed and finalised by those who will operate it. That does not mean that the process is being developed behind closed doors. As I think was acknowledged by my noble friend in moving her amendment, before Committee stage in the other place we published a statement of intent on administrative review setting out the details of the procedure, and it is that procedure which has come under scrutiny in this proposed new clause.

I can confirm that administrative reviews will be undertaken by Home Office staff who will be independent of the original decision-maker and entirely separate from the initial decision-maker’s line management chain. We intend to establish a separate administrative review function for in-country migration casework. This means that those undertaking the reviews will be separate from those taking the decisions under review. We expect some of our most experienced staff to be among those undertaking administrative reviews. That does not mean that the initial decision-making will be left to inexperienced staff. I agreed entirely with my noble friend Lord Avebury when he said that the important thing is to get these decisions right in the first place. I could not agree more. It is worth noting that only 10% of decisions taken in-country are refused and therefore only a proportionate number of experienced caseworkers will be redeployed to review work from initial decision-making.

The noble Baroness, Lady Smith, quite properly said that, of the cumulative figure of 60% from the sample, 30% of refusals are due to that kind of administrative error. However, it is also important to recognise that, in terms of the totality of decisions taken in this field, that amounts to something like only 3% of all decisions taken. Of course, that presumes that every decision on granting an application is correct—we tend not to have appeals against incorrect grantings—but that puts it into some kind of perspective. Although 30% is a high figure, I am not running away from the fact that 60% came as a surprise, and it is important that we bear down on and reduce that figure.

5 Mar 2014 : Column 1358

The point of arguing for an administrative review is that, as the noble Baroness pointed out from that sample, there have been caseworking errors. It is better that those on the receiving end of the errors are able to get them corrected more quickly and we are serious about meeting the 28-day target. Indeed, it would be far less costly to do so through an administrative review than through the whole panoply of an appeal.

Baroness Smith of Basildon: In the information that I have, a number of these decisions are reviewed later by a senior officer. If some of those are found to be incorrect, it would indicate that the review process is not as good as the Minister thinks. Does he know how many decisions ultimately appealed and won were reviewed by a senior officer as well as the initial decision-taker?

Lord Wallace of Tankerness: I am afraid that I do not have a figure for that further subcategory. If it exists, I will make sure that I inform the noble Baroness and others who have taken part in this debate, and will put a copy in the Library. That certainly could help to inform the debate as I am sure this issue may well arise later in our deliberations. All staff undertaking administrative reviews will receive full training in all routes and categories before they commence their work as part of the review team. I believe that the statement of intent indicated that it is intended to have a separate dedicated team of reviewers in each specialist area. Regular reports on the performance of the administrative review process as a whole will be sent to senior management. We will establish feedback mechanisms to ensure that lessons learnt are fed back to case workers.

I think I indicated in our debate on Monday that, within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan. Again, it is important to remember that the procedure will be set out in rules that Parliament can scrutinise. As I have said, we have committed to an independent oversight by the chief inspector in the public statement of intent that I have just read out. He has the power to undertake an inspection off his own bat and may do so if there are concerns about the administrative review process. His reports are published and Parliament may hold the Government to account in respect of those reports by means of questions and debates. Having to meet these additional requirements may also, if we were to go down the road proposed by my noble friend Lady Hamwee, delay the commencement of Clause 11. She quite properly said that there might be certain attractions in having two systems running in parallel, although I suspect that that would be a bureaucratic nightmare and would not properly serve the interests of anyone, least of all the applicants.

The delay in commencement is undesirable because it would delay migrants who would benefit from these changes, which would provide faster and cheaper resolution of caseworking errors. This delay could arise because the Home Office needs to identify an independent person who could take on the role envisaged in this amendment. This would also add an administrative

5 Mar 2014 : Column 1359

layer to the development and operation of the administrative review. It is envisaged that the chief inspector would take on this role, a point that I already have made. We intend to benefit appellants and those who will no longer have a right of appeal under Clause 11. My noble friend Lady Hamwee proposes that it should lapse in five years unless there is parliamentary approval for it to continue in force, which I feel would not be of benefit.

Clause 11 fundamentally reforms appeal rights. It is a reform that is needed to simplify an overcomplex framework and to provide a faster and cheaper remedy for caseworking errors. However, because this reform is fundamental, reversing the change after five years could cause even further upheaval. The changes made to the appeals process and the court system would need to be undone. That could come not only at cost but also at the expense of considerable uncertainty.

My noble friend Lady Hamwee also made reference to the administrative review system that is already operating overseas. Some 90% of these reviews have been completed within the target of 28 days for the quarter ending June 2013. The proposed process for in-country, which we are debating here, mirrors the approach taken overseas. My noble friend also made the point that we are asking people to reverse the decision of their work colleagues and, as she quite properly put it, to overturn the decision of the Secretary of State. She mentioned the figures, including that in entry clearance cases in 2012 for operating overseas the initial decision was overturned in 21% of cases. I sometimes think that in this area you are damned if you do and damned if you do not. The figure of 21% is a sizeable number, which suggests that those who are doing the review are not necessarily intimidated by having to overturn the Secretary of State’s decision. Equally, one might say that 21% is far too high and that the figure should be lower, in which case they may say that they were frightened. The point is that the system that has been operating overseas has had 90% of cases completed within the target of 28 days. It shows that those who are doing the reviews are not scared off or hesitant in overturning decisions when mistakes have been made.

I recognise that there are concerns and I suspect we will return to this and that amendments will be tabled on Report, which will offer us a chance to reflect further on the points that have been made both today and on Monday. However, I believe that what we are putting in place will bring considerable simplification and lead to quicker and cheaper decisions. Therefore, for the reasons I have given on some of the detail but also because of the delays that could take place, the fact that there will be an opportunity for noble Lords to scrutinise the rules that will be put in place and because the chief inspector will be able to conduct his own review, I invite my noble friend to withdraw her amendment.

Baroness Hamwee: My Lords, I suppose that if the chief inspector will have added to his workload checking to see if and how anyone is damned, one question he may be asking privately is what extra resources there will be for that. I take the point about the rules, which

5 Mar 2014 : Column 1360

now have to be in the form of an order, being an opportunity for scrutiny. However, as we all know, one cannot amend an order. I also need to ask, although I do not expect my noble and learned friend—

Lord Wallace of Tankerness: If I am wrong I will correct this, but my understanding is that if Parliament does not support the order when it is scrutinised, the Secretary of State is obliged to lay new rules within 40 days. It does not annul the rules but new rules have to be promoted within 40 days.

Baroness Hamwee: I am grateful for that. I do not think that it negates the question that I am about to ask, although my noble and learned friend may not be able to answer it at this point. It is about opportunities to feed into the draft rules before they come into final form. It is clear that there are a lot of points that could be constructive and helpful, which do not oppose the policy but come from the experience that so many people have of similar forms of process. What opportunity will there be to feed into the construction of the rules?

Also, how much detail will there be in the rules when they are proposed? The statement of intent, which to my mind raises some questions—I asked one or two of them—is probably more detailed than the rules. Anyway, as my noble and learned friend says, we may well return to this whole issue. Therefore, for today, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

Clause 12: Place from which appeal may be brought or continued

Amendment 31

Moved by Baroness Hamwee

31: Clause 12, page 10, line 31, at end insert—

“( ) An appeal to which subsection (3) applies must be brought from within the United Kingdom if there is a child of the appellant in the United Kingdom.”

Baroness Hamwee: In moving Amendment 31, I will also speak to Amendment 32 in this group. The amendment takes us to Clause 12, which deals with the place from which an appeal may be made. The first amendment is particularly concerned with children.

Clause 12(3) proposes that “foreign criminals”, as defined, and people whom the Home Secretary deems not to be conducive to the public good can be deported first and appeal after unless that would cause “serious irreversible harm”. The concern raised by the amendment relates to the consequences for child welfare, something which this House discussed on Monday in the context of detention and which we have so often discussed.

5 pm

I am concerned about the needs of children who could be split from a parent by that parent’s deportation. We have often referred to the UN Convention on the Rights of the Child, which says that,

“a child shall not be separated from his or her parents … except when competent authorities subject to judicial review determine”—

5 Mar 2014 : Column 1361

I accept there is the right for judicial review—

“in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. …In any proceedings pursuant to … the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known”.

I do not think it can be denied that there will be problems in taking matters forward from abroad but, even where parents are able to bring an appeal from abroad, there will have been disruption and quite possibly damage to the child from the separation, as they will either have accompanied the parent or have been separated. Where there are two parents, which is not invariably the case, the child will be separated from one of them.

A number of noble Lords will be familiar with the work of the organisation Bail for Immigration Detainees and its report Fractured Childhoods on the cases of more than 100 parents who were separated from their children by immigration detention. The concerns about separation of course come up in many contexts, not just immigration, but the impact on a child’s development is one that child psychologists and neurobiologists are increasingly aware of and managing to explain to the rest of us.

Therefore I take this opportunity to ask my noble friend several questions. What assessment have the Government made of the barriers to deportees appealing from abroad? What data might there be on success rates for appellants who appear in court compared to those whose cases are heard in their absence? In particular, in the context of my amendment, have the Government assessed the impact on children who are settled in the UK with one parent if the other is deported for a significant period? What estimate have the Government made of the number of deportees who will lodge judicial reviews and of the costs and delays in concluding cases?

My second amendment, Amendment 32, is a probing amendment on the new Section 94B. Subsection (3) of new Section 94B says:

“The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular)”,

and then goes on to spell out the detail. My amendment would replace “include (in particular)” by “are”, which makes clear the basis on which the Secretary of State may certify a claim. My noble friend will understand that this is not because I want to be more restrictive but in order to ask about the circumstances in which deportation would be permitted when a human rights claim is made which the Secretary of State has refused and about which the person is appealing or wishes to appeal.

If the Secretary of State does not consider deportation to be a breach of human rights, in what circumstances could she rationally conclude that it would do “serious irreversible harm” to deport pending an appeal? Is it the case that, where she refuses the human rights application, she will also decide that new Section 94B(2) applies and so the deportation will proceed before an appeal is brought or finally decided?

My noble friend Lord Taylor has written to us quite extensively following the debate at Second Reading and has drawn attention to the “real risk” of the serious irreversible harm test:

“If there were dependent children in the UK and it could be shown that there were exceptional reasons giving rise to a real risk

5 Mar 2014 : Column 1362

of serious irreversible harm, the power to certify [i.e. to apply new section 94B] would not be exercised and the criminal could appeal from the UK”.

But that new section is drafted quite restrictively. On its face, it applies only where there is a real risk of such harm to the person facing deportation—it uses the words “that P would not”, where P is the person facing deportation. There has to be a concern, and it is one that I am expressing here, about that person’s child, and indeed there may be other family members who face such harm.

Others will point to and have pointed to the proposed reforms of judicial review which the Government have in train, the difficulty of pursuing judicial review from abroad and, indeed, the undesirability of there being a large number of judicial reviews. I hope that my noble friend can assist on the questions I have asked. There is also an amendment in this group from the noble Baroness, Lady Lister. I beg to move.

Lord Pannick (CB): My Lords, perhaps I may add my support to the points that have been made by the noble Baroness, Lady Hamwee. I shall speak to Amendment 31A, which is in my name and that of the noble Baroness, Lady Lister of Burtersett.

Amendment 31A arises out of the concerns that have been expressed at paragraphs 48 to 53 by the Joint Committee on Human Rights in its eighth report of this Session. The concern is that, in cases where a person is resisting deportation on human rights grounds, Clause 12 will allow the Home Secretary to certify that the person concerned may be removed from the United Kingdom because there is not a real risk of serious irreversible harm and the individual would then be able to pursue the appeal against deportation only from abroad. The Government say that judicial review will be available to such a person to challenge the removal decision while the appeal is pending.

The JCHR has expressed its concern about whether judicial review will provide a practical and effective means of challenging the certification by the Secretary of State that the appeal can be heard from abroad. The JCHR has drawn attention to the Government’s proposed changes to judicial review to restrict its availability and has emphasised the reductions in legal aid. The Joint Committee returned to this subject in its 12th report, published on 26 February.

I share the concerns that have been expressed by the JCHR, and I would add that it is more than a little ironic that the Government’s policy has hitherto been to reduce the number of judicial reviews in the immigration context on the basis that appeals are much quicker and cheaper, and yet now the Government are saying that the individual’s protection will lie in a judicial review. In the light of the reductions in legal aid and the changes that the Government are proposing to judicial review, there are real concerns about whether or not an effective practical remedy will remain available to the individual.

I want to add one specific point to those that have been made by the JCHR. In cases of this kind, a claimant for judicial review will vitally depend on information and representations from interveners; that is, expert bodies that regularly assist the court—sometimes in writing, sometimes through oral submissions—for

5 Mar 2014 : Column 1363

example, by explaining to the court the practical conditions in the foreign state to which the person concerned is going to be deported.

Your Lordships will know that Clause 51 of the Criminal Justice and Courts Bill, which is currently before the other place, will oblige the court, other than in exceptional circumstances, to order an intervener to pay the costs incurred by the other parties as a result of the intervention—surprisingly, whether or not the intervention assists the court and, indeed, whether or not the party seeking costs from the intervener has succeeded in the judicial review. Does the Minister share my concern that, unless amended, Clause 51 of that Bill will inevitably deter interventions, which are vital in this type of case, and make it much more difficult for a person covered by Clause 12 of this Bill to bring an effective claim for judicial review? What assurances can the Minister give the Committee in response to my concerns and those set out more fully in the JCHR’s reports?

Baroness Lister of Burtersett (Lab): My Lords, I support Amendment 31A. I am very grateful to the noble Lord, Lord Pannick, for speaking to it on behalf of the JCHR. As he has shown, he is much better placed to do so than I would have been as a non-lawyer. There is not much more to say about it. I will just underline what the JCHR said, which was:

“In the absence of legal aid, we do not consider that an out of country appeal against deportation on the grounds that it is in breach of the right to respect for private and family life is a practical and effective remedy for the purposes of Article 8 ECHR and Article 13 in conjunction with Article 8”.

Support also comes from the briefing we have received from ILPA, which underlines that for those who are unable to pay for legal representation and are therefore left to pursue their appeals by themselves, seeking to do so from outside the UK would be especially and in many cases prohibitively difficult. The absence of a legal representative at the appeal hearing and to assist in the collection, preparation and presentation of evidence is likely to spell the end of what little prospect there may have been in the small minority of cases where removal pending appeal had not itself spelt, in Lord Justice Sedley’s words,

“the end of the appeal”.

My preference would be for our amendment to prevail but, as a fallback, I would certainly support the amendment moved by the noble Baroness, Lady Hamwee, in respect of children. I will be speaking about children’s best interests in a moment, but a very good case has been made for this amendment by the Refugee Children’s Consortium and others. I will quote a case study that the consortium has provided, which states:

“The Home Office detained and planned to deport Christine, a single mother who had served a criminal sentence. Her two children were left in the care of their elderly and seriously ill grandfather. Her 15 year old daughter ‘Beth’ left school and missed her GCSEs while caring for her brother and grandfather. She struggled to look after her seven year old brother, who has very limited motor control and severe behavioural problems. A children’s services assessment found that the younger child was at risk of emotional and physical harm; he was later hit by a car while playing alone in the street. The children’s welfare was not

5 Mar 2014 : Column 1364

taken into account by the Home Office, but after the mother’s release on bail she was reunited with her children and successfully appealed her deportation through the courts”.

The point made is:

“If Clause 12 becomes law, parents in Christine’s situation may be deported before they can appeal and her children would be separated from their mother”.

That is a horrendous example. If she had been deported, what would have happened to that family?

5.15 pm

Lord Bourne of Aberystwyth (Con): My Lords, I move to resist these amendments and support Clause 12 of the Bill. The effect of Clause 12 means that deportation may be immediate and not suspensive, unless the Home Secretary feels that there is a real risk of serious, irreversible harm to the appellant pending the appeal. I believe that that will apply only in a very limited number of cases. That does not mean that it is not serious for those cases, but could the Minister in responding give some estimate of the number of cases that it is likely to affect? The other important point in relation to Clause 12 is that the Home Secretary has to be convinced that the deportation is conducive to the public good and has to certify that it is consistent with our human rights obligations. Those are two very important qualifications. That is worth stressing.

First, the case for Amendment 31A was persuasively put, but it removes the clause entirely from the Bill and would mean that these out-of-country appeals would become in-country appeals. Given those limitations on the Home Secretary’s ability to act, that would be entirely wrong.

On Amendment 31, again, I understand the points made by my noble friend Lady Hamwee. They were very well put and no doubt prompted by humane considerations that I identify with. However, in addition to the fact that it undermines the ability of the Home Secretary to act where it is conducive to the public good, there are two other fundamental points to be made here. First, in relation to this particular amendment, there is no limitation on how long the child has been in the United Kingdom. They could have been here a matter of weeks or days, or even hours. I appreciate that that is in terms of the framing of this particular amendment, but it is a serious flaw.

In addition, and perhaps more fundamentally, there is the issue of whether children will be brought over to appellants where that is certainly not in the best interests of the child. It may well be in the best interests of the child to remain with other family members—possibly the other parent—overseas in their home country. I realise that that is an unintended consequence of the amendment, but it could well be the case. For those reasons, I am very much against the two amendments.

Baroness Smith of Basildon: My Lords, as I understand Clause 12, it is all about dealing with appeals and provides a power for the Secretary of State to certify that to require an appellant who is liable to deportation to leave the UK before their appeal is determined would not cause irreversible harm, in which case that person can appeal only from outside the UK. We do not oppose the clause as a whole but these amendments are very useful in trying to probe the intention and practicalities. I have a few questions for the Minister.

5 Mar 2014 : Column 1365

I read Hansard from the other place, where questions were raised by my colleague David Hanson. I do not really feel that all the answers given fully addressed the questions to my satisfaction. It would be useful if the noble Lord could help address those. My understanding is that when the Bill was first introduced into the Commons it referred only to foreign criminals, but was then later amended to include all those liable to deportation. Mark Harper, who was then but is no longer the Minister, explained that this included,

“individuals who were being deported from the UK on the ground that their presence would not be conducive to the public good”.—[

Official Report

, Commons, Immigration Bill Committee, 5/11/13; col. 205.]

That was not in the Bill originally: it was introduced at a later stage.

When the then Minister was pressed on this, he gave a couple of examples such as a gang member or a member of a serious organised crime syndicate. I would not expect the Minister here to give an exhaustive list, and I am not asking for one, but the clause gives considerable discretion to the Home Secretary, or any future Home Secretary, who can determine who is deported under that definition. I should just like to probe further to get more information from the Minister about how that would apply and who it would apply to, but also the grounds on which, and how, the Home Secretary would make that judgment.

That is a very important point; there is a lack of clarity as the Bill stands. At the time, the Minister said that the numbers would be very small, but if the Government bring forward a clause such as this, they must have a reason for doing so. I should expect them to have some idea of the kind of number—I would not for a moment expect an exact number—of cases they expect the provision to apply to. I would like to know the reasons why this was brought forward in the first place and why the change was made from criminals to those who would not be conducive to the public good.

Another issue that has been raised is about the family members of those who have not been convicted of a crime but who have been deported under the clause. The Minister in the Commons said that he would write on that issue. He may have written to colleagues in the other place, but I have not seen his response. On removals, I would like to know the position of family members. The point has already been made about children, but there will be other vulnerable family members. What will be the position of family members, including vulnerable ones? What information will they be given? What happens if the person has been deported and then returns to the UK when they win their appeal? Indeed, will they be allowed to return to the UK if they win their appeal, or will they have to make a separate visa application to return?

I find a fair bit of uncertainty in the clause, and we lack information as to exactly how it will work. I should be grateful for further clarification from the Minister.

Lord Wallace of Tankerness: My Lords, I again thank my noble friend Lady Hamwee for moving her amendment and raising the issues which arise under Clause 12.

At present, all appeals where there is a human rights claim suspend deportation unless the claim can be certified as clearly unfounded. The powers introduced

5 Mar 2014 : Column 1366

by Clause 12(3) mean that those facing deportation, including foreign criminals, may be deported, and their appeal heard while they are out of the country, if the Secretary of State certifies that that would not breach the UK’s obligations under the European Convention on Human Rights—a point well made by my noble friend Lord Bourne of Aberystwyth. This is intended to build on the Crime and Courts Act 2013, where the Government made similar provisions for out-of-country appeals in national security deportations. The serious irreversible harm test is one used by the European Court of Human Rights when it decides whether an individual deportation must be suspended, and also in its rulings on what types of claim must be granted an in-country appeal. Amendment 31 would limit the scope of the power to those who are being deported who do not have a child in the United Kingdom, while Amendment 31A would remove the power entirely from what would become Section 94B of the Nationality, Immigration and Asylum Act 2002.

I reassure the Committee that the clause will impact only on a very small cohort of cases—those whose actions and behaviour is non-conducive to the public good—and that in limiting the power to deportation cases, the Government are acting in a proportionate way, and not going as far as European Court of Human Rights cases allow. I assure the Committee that by framing the provision in this way, an arguable asylum claim would never qualify for certification under the power. The Secretary of State cannot use the new power where there is an arguable risk of a breach of Article 2 or Article 3 of the European convention.

Equally, the drafting of the Bill means that this power will not be available for those whom the Government are seeking administratively to remove for the purposes of immigration control—such as illegal entry or overstaying a visa, although ECHR case law would in fact have allowed such an approach.

A deliberate decision has been taken to make the power available only for a small cohort of cases where the individual’s actions—the action of the person for whom certification for deportation is relevant—the vast majority of whom will be convicted criminals. I will come on to the point raised by the noble Baroness about others. This applies if the individual’s actions mean that the Secretary of State considers that their presence in the United Kingdom is not conducive to the public good. Perhaps I may illustrate the size of the issue for the Committee. According to Ministry of Justice figures, in 2012-13 the Asylum and Immigration Tribunal received 1,800 appeals against deportation, which included a number of miscellaneous appeals. This change would have impacted on less than 2% of the appeals that the tribunal received that year.

The Government would not seek to remove family members of those whom we are seeking to deport if they have immigration status in the UK in their own right; for example, if they are an EEA national exercising treaty rights or individuals with indefinite leave to remain, or have valid leave as a student. Even in the rare cases where the Government seek to deport family members along with the principal, for example because their status in the UK is based solely on their relationship

5 Mar 2014 : Column 1367

with the deportee, this clause does not allow the appeals of dependants to be certified: they will be suspensive. The power is also a permissive one in that the Secretary of State may certify appeals but is not required to. This will allow cases to be considered on their individual facts and ensure that the Government complies with their duty to consider the best interests of the child as a primary consideration in immigration decisions.

The noble Baroness asked what would happen if a person wins their appeal. If an individual wins an appeal from abroad, the UK Government will facilitate their re-entry into the United Kingdom.

In summary, the power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The clause is limited and tightly defined to ensure that only those who have caused or are trying to cause harm are deported from the country quickly.

Lord Woolf (CB): Would the Minister be good enough to indicate what “facilitate” means? Does it mean that the Government are going to pay their costs of returning, as used to be the practice?

Lord Wallace of Tankerness: I am grateful to the noble and learned Lord. Clearly, there will be an opportunity to challenge the decision to certify taken before the deportation took place. We do not believe that there would be a liability to pay compensation if an appeal were successful. I think that I have a fuller answer somewhere on that particular point; I know that I have read it. If I do not get it in my hand before I sit down, I will certainly write to the noble and learned Lord. And here it is. If an individual wins at appeal, they will be entitled to return to the United Kingdom and the United Kingdom Government may pay for their airfare, which will be considerably less than the cost of detaining them while waiting for their appeal. I am grateful to the noble and learned Lord for his forbearance on that.

I was trying to get to the point at which the Baroness, Lady Smith, asked about the original Bill being amended in the House of Commons. The provision as it originally stood stated “criminals”, but that was extended because the Government realised on reflection that this definition would leave out a cohort of harmful individuals who should not have a suspensive right of appeal. That could include individuals who are being deported from the United Kingdom on the grounds that their presence is not conducive to the public good, a broader judgment than automatic deportation on the grounds of a single offence. For example, they could be gang members where witness intimidation and a culture of silence means that there has not been a successful prosecution but there is compelling evidence about their conduct that can be used in an immigration decision. The Home Secretary would consider the intelligence against a person and on the basis of that intelligence deport him as his presence in the UK would not be conducive to the public good.

A case is certified for the Special Immigration Appeals Commission on the basis that it has been taken considering secret intelligence, so it does go wider. My right honourable

5 Mar 2014 : Column 1368

friend Mark Harper gave examples in the other place of where there may be good information and intelligence but, for reasons possibly to do with witness intimidation, it has not been possible to bring a prosecution. Obviously, this can be tested in any appeal which takes place.

I turn to Amendment 31, which was moved by my noble friend. The amendment would mean that this group of cases, of people whose presence in the UK is deemed harmful, would be able to use a child—who may have been in the UK for only a matter of days or weeks, because there is no definition of what a qualifying child would be—to avoid certification of their appeal and their early departure from the UK. They would be able to use the presence of that child even if they were not in fact responsible for caring for the child—who might live somewhere else or with other family members.

5.30 pm

It is of course right that the best interests of the child should be a primary consideration; there will be groups of amendments later where we look again at the importance of children in immigration decisions. There will no doubt be cases where deportation appeals are not certified because of the risk that serious irreversible harm might be caused to a child. I reiterate that the power here in the hands of the Secretary of State is a discretionary one, but having a child in the UK at the time of certification should not in itself be a trump card. Each case should be considered on its individual merits.

As the noble Lord, Lord Pannick, indicated, the effect of passing Amendment 31A would be to remove the subsection from the Bill, thus retaining in-country appeal rights for convicted criminals and others whose presence in the UK was not conducive to the public good. I have set out the background as to why the Government believe that it is important that the Secretary of State should have this power.

The noble Lord and the noble Baroness, Lady Lister, raised the issue, as reflected in the report of the Joint Committee on Human Rights, of where the Bill’s provisions on non-suspensive appeals and government reforms to legal aid allegedly collide. I shall set out some of the background, the purpose and the effect of the Government’s reforms to legal aid. I have some déjà vu from our debates during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act. The scope of the legal aid scheme has recently been settled, and the Government have no plans to further extend its scope beyond the high-priority matters that Parliament has extensively debated and agreed. The matters on which an individual is entitled to claim civil legal aid are set out in the 2012 Act, which came into force on 1 April last year.

Under the existing legislation, legal aid is restricted to the highest-priority cases—for example, where people’s life or liberty are at stake; where they are at serious risk of serious physical harm or immediate loss of their home; or where their children may be taken into care. The Government consider that limited legal aid resources should be targeted at those cases where they are needed most if the legal aid system is to command public confidence. Without unlimited funding—if we had unlimited funding it might be a different debate—the

5 Mar 2014 : Column 1369

Government must target legal aid where it is needed most. Providing legal aid for asylum seekers, for example, or victims of trafficking in domestic violence are where legal aid resources have been targeted. Proposals for further legal aid reform, including the new residence tests, support the provisions in the Bill to make it harder for those unlawfully in the UK to prolong their stay here. The British taxpayer should not be expected to fund litigation brought by those who are in the UK unlawfully or indeed who are not in the country.

Lastly, and importantly, any individual who is excluded from civil legal aid as a result of the test will still be able to apply under the exceptional funding scheme, which ensures that legal aid will continue to be provided where a failure to do so would breach the applicant’s rights to legal aid under the European Convention on Human Rights or EU law. In immigration appeals, there is no legal aid available for appeals brought on the grounds that deportation from the UK would be a breach of Article 8. This is the case whether the appeal is brought in the UK or outside it. If a person is deported from the UK using the new certification power in the Bill, they may appeal from overseas and legal aid remains unavailable. If a person deported does not have the means to instruct lawyers to present their appeal, they may have family or friends in the UK who can make representations on their behalf. This is particularly so in the context of this certification power, which will be applied principally to Article 8 cases where the appellant claims to have family or private life in the UK. An appeal can also be considered on papers without a hearing. Indeed, the immigration tribunal has years of experience of determining cases in this way, and does so with thousands of cases every year. It would certainly be the case that a person deported would have an opportunity to make their case in that way.

Ultimately, I repeat, the power is a discretionary one. It will be applied only where there is not a risk of serious irreversible harm. It will therefore not be applied in all Article 8 cases. If there were exceptional circumstances, the power would not be applied. Each case will be carefully considered, with a full account of the specific circumstances of the person deported being considered by the Home Secretary.

The noble Lord, Lord Pannick, referred to the Criminal Justice and Courts Bill in the other place. We are getting to an interesting situation. We are contemplating the impact of the consequences of two pieces of legislation, neither of which has been passed, and one of which has not even come to your Lordships’ House. I think the Criminal Justice and Courts Bill has had only a Second Reading in the other place. Clearly, I will look at what the noble Lord, Lord Pannick, said, but it would be presumptuous to presume—and would cause trouble for me and my colleagues in future—that your Lordships would nod through the Bill as it currently stands. I cannot think for a moment that the noble Lord, Lord Pannick, and several other noble Lords will not be addressing it. I will look at what the noble Lord said in that regard.

My noble friend Lady Hamwee mentioned that Amendment 32 is a probing amendment. It would make serious and irreversible harm the definitive test

5 Mar 2014 : Column 1370

for the non-suspensive certification decision. I am grateful to my noble friend for this amendment. I hope I can reassure her that there is no difference of principle between us. The wording proposed by the Government would mean that the serious irreversible harm test is an example of when an appeal could be certified on the basis that removal pending the outcome of the appeal would not contravene an appellant’s human rights. The amendment before us now would mean that this test would be the only possible test.

I urge the House to retain the flexibility of the current wording. The test of serious irreversible harm is the test currently used by the European Court of Human Rights, but there is always the possibility that the European court will adjust its approach. If it does, the Government would want to be able to keep pace with the jurisprudence of the European court rather than lose the ability to invoke this power. The fact that there is no exhaustive description of the possible tests merely reflects what is intended to be a pragmatic point in the drafting. The amendment would set the certification test as serious irreversible harm for all time, and therefore if case law were to evolve, changes to primary legislation would be required, and until that happened and could be passed, the power might prove unworkable. With these explanations, I urge my noble friend to withdraw her amendment.

Baroness Hamwee: My Lords, I think that when I introduced Amendment 32, I acknowledged that it is not an amendment that I want but it was a convenient way of probing.

On the legal aid point, I cannot resist saying that a child cannot choose his parents. If a child finds that he has a parent who is a criminal or someone whose presence the Home Secretary regards as not conducive to the public good, that is not the child’s fault.

I must apologise to the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. I misread the order in which their names were given on the amendment. I saw a look crossing the noble Baroness’s face showing that she was thinking, “What am I expected to do now?”.

The noble Lord, Lord Bourne, referred to being conducive to the public good. There is an issue of balancing interests here. I think there is a very strong argument that the interests of the child are also a public good. I take the point that he and my noble and learned friend made about there being issues about how long the child in question had been in the UK, whether the parent had caring responsibilities and so on. I am conscious that there could be a danger of a child being used as a pawn in this situation.

The Minister talked about circumstances where there might be suspensive certification and so on, and Hansard will certainly bear being read and reread. I come at this from preferring to reverse the positions. Rather than the legislation allowing the Secretary of State to ensure that something does not happen, the Bill should ensure that it does not happen with a discretion the other way around—in other words, reversing it. I am probably being a bit confusing in saying that because I am not entirely clear in my own head about how that would look. I will read Hansard to try to understand the points a bit better.

5 Mar 2014 : Column 1371

I apologise that I had not warned my noble and learned friend that I would ask him about whether the Government have assessed the impact on children settled in the UK in these circumstances. If he is not able to answer that point now, I wonder whether it might be pursued after this stage. He is agreeing, and I am grateful. I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

Amendments 31A and 32 not moved.

Clause 12 agreed.

Clause 13 agreed.

Clause 14: Article 8 of the ECHR: public interest considerations

Amendment 33

Moved by Baroness Lister of Burtersett

33: Clause 14, page 12, line 25, at end insert—

“(za) first, to the best interests of any child affected by a decision as specified in section 117A(1),”

Baroness Lister of Burtersett: My Lords, I will also speak to Amendments 40, 42, 43 and 45, supported by the noble Lord, Lord Roberts of Llandudno, and the right reverend Prelate the Bishop of St Albans. These amendments are about the best interests of the child. Time and again, your Lordships’ House has promoted and defended the best interests of children, and I hope that it will do so again in the context of this Bill.

Amendment 33 is designed to ensure that the best interests of children are explicit in this part of the Bill so that they are properly prioritised and comprehensively considered by a court or tribunal; and so that it is clear to all decision-makers that the best interests of children affected by these decisions need to be taken into account as a primary consideration. Amendments 40, 42 and 43 remove the concept of a “qualifying child”, so as to make clear in the legislation that all children’s best interests must be given proper consideration and weight. In addition, Amendment 43 alters the test in exception 2, concerning deportation of foreign criminals, where there is a genuine and subsisting relationship with a qualifying partner or child so that the effect on family members would have to be “disproportionate” rather than “unduly harsh”. “Unduly harsh” is, I understand, an alien test in the context of considering what is best for a child, whereas “disproportionate” is known and well understood with reference to the balancing act involved in considering interference with family life in EHCR case law. I cannot help but wonder what would constitute a “duly harsh” effect on a blameless child.

These amendments have been suggested by the Refugee Children’s Consortium. I am grateful to it for its briefing. Amendment 33 has also been endorsed by the Joint Committee for Human Rights, of which I am a member, in its second legislative scrutiny report on the Bill. The JCHR’s concern was mainly with the question of “best interests”, and that will be the focus of my remarks, too.

5 Mar 2014 : Column 1372

As noble Lords will be aware, the injunction to establish the best interests of children and ensure that they are a primary consideration in all decisions affecting them derives from the UN Convention on the Rights of the Child, its general comments and judgments in both the European Court of Human Rights and the UK Supreme Court. Clause 14 fails to make this injunction explicit and does not reflect established case law on children’s best interests. In particular, it fails to highlight the importance that must first be accorded to understanding the best interests of the child, and their weight, before going on to consider any other countervailing public interest factors.

I emphasise that this is not an argument that children’s best interests are some kind of a trump card. I repeat: it is not arguing that they are a trump card that overrides these countervailing public interest factors, only that they must be a primary consideration in the assessment of each individual case. What this means was spelt out in the landmark Supreme Court judgments, ZH (Tanzania) and HH. In the ZH judgment, it was noted that in making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations.

In HH, Lord Justice Kerr—the noble and learned Lord, Lord Kerr—stated that best interests,

“must always be at the forefront of any decision-maker’s mind … This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether [the government’s action] justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests”.

Amendment 33 does no more than make that explicit. It is a principle that the Government accept, as they made clear both in the Public Bill Committee and in their correspondence with the JCHR about the relationship between this legislation and the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, to have,

“regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.

The committee welcomed that, but despite the Government’s reassurances, it considers that the Bill should be amended to,

“remove any scope for doubt about the effect of the Bill on the s. 55 children duty, by requiring the best interests of the child to be taken into account as a primary consideration”.

5.45 pm

In reaching that conclusion the committee drew attention to a recent UN High Commissioner for Refugees audit of Home Office decision-making, which found that in many family asylum cases the analysis of children’s best interests was piecemeal and not always specific to the child’s individual characteristics or situation. Among other things, the audit found that within Home Office procedures there is no formal and systematic collection or recording of the information necessary for a quality best-interest consideration, that an analysis of the child’s safety was rarely undertaken, and that confusion has arisen in relation to the new family

5 Mar 2014 : Column 1373

Immigration Rules. That does not install confidence in how seriously and effectively children’s best interests are being considered in practice, even under existing legislation. Can the Minister say what consideration has been given to the implications of this audit for the Bill, and what action is being taken in response to it?

Another insight into the inadequacy of Clause 14 as it stands comes from the former Home Office Minister Sarah Teather, now a colleague on the JCHR. On Report in the Commons, she expressed her frustration that its wording,

“undermines the work we did to end child detention and put in place in the Home Office a practice of considering the best interests of children”.

She found it deeply and profoundly confusing, not least as it,

“appears to imply that certain children are somehow invisible”.—[

Official Report

, Commons, 30/1/14; col. 1075.]

The charge of invisibility is also relevant to the question of what constitutes public interests, which lies at the heart of Clause 14. As it stands, the clause fails to recognise that promoting and protecting the interests of children, which is rightly no longer seen by public policy as a purely private matter, is in itself a public good—a point just made by the noble Baroness, Lady Hamwee—and therefore of public interest. In HH, the Supreme Court held that there is,

“a strong public interest in ensuring that children are properly brought up”.

Does the Minister agree with that sentiment, and if so, would he also agree that the kind of amendment proposed would dispel any impression that children’s interests are being treated as no more than personal and private interests?

Finally, Amendments 40, 42 and 45 remove the category of qualifying child, which excludes from consideration any child who is not a British citizen or who has not lived in the UK for a continuous period of at least seven years, which of course includes any child aged under seven. The JCHR asked how that is compatible with the obligation in the UN Convention on the Rights of the Child to have regard to the best interests of the child as a primary consideration. It asked whether the Section 55 duty would still apply to children who do not fall within the definition of a qualifying child. In their response, the Government confirmed that they would, and that is very welcome. They also confirmed that they would update guidance to front-line officials without addressing the specific point that concerned the committee—that is, the need for such guidance to provide an explanation of how the Bill’s provisions concerning the public interest considerations relevant in cases concerning Article 8 of the ECHR are to be read alongside the Section 55 children duty. I would be grateful if the Minister could give that assurance now and if he could repeat, so it is on the Hansard record, first, that the Section 55 duty will apply to children who do not fall within the qualifying child definition and, secondly, that as confirmed in the Minister’s very helpful response to issues raised by other noble Lords at Second Reading, there will still be a requirement to consider the best interests of a child in the UK in all cases.

5 Mar 2014 : Column 1374

These amendments, of course, go further. I want to question why the distinction between qualifying and non-qualifying is being made at all. I emphasise again that I speak here as a non-lawyer. In response to the JCHR, the Government justified it on the grounds that children aged under seven would not have developed attachments beyond the parent and the home such as to make it unreasonable to expect the child to leave the UK, citing justification E-A Nigeria, although there the court was referring to children from birth to only four, not seven. In the Public Bill Committee, the Minister said that a child who,

“has reached the age of seven … will have moved beyond simply having his or her needs met by the parents”.—[

Official Report

, Commons, Immigration Bill Committee, 5/11/13; col. 216.]

Surely, that could apply to a child aged five or six, too. It is a long time ago since I was that kind of age, and the same would apply to other noble Lords. I remember very little from my childhood, but one thing that I do remember is that I was absolutely devastated when my best friend moved away. I had no control over it; she was like a sister to me—I was an only child. What happens to only children who have made serious attachments to other children in their neighbourhood? That matters a lot. I can still remember the sense of pain that I had as the removal van drove away from two doors down. Noble Lords should not underestimate what it means to a child to lose that kind of attachment, however young the child. Could the Minister explain the rationale behind the cut-off at seven? I know that it mirrors an earlier concession, but that is not sufficient justification.

Furthermore, the Government’s position ignores the complexity of cases where, for example, parents may be separated and children often face the impossible choice between leaving behind one parent in the UK and being split from the deported parent for the rest of their childhood. More generally, BID’s study of children separated from parents for the purposes of immigration control painted a picture of children suffering nightmares and insomnia, crying frequently and losing weight—and this included some younger children.

To return to the simple question of the best interests of the child, as I have said, I do not believe that there is any disagreement here on the basic principles involved. The amendment would help to provide a clarity and consistency that the Government have themselves stated that they wish to achieve with Clause 14 in a letter to the JCHR, and I think elsewhere. I hope that the Minister will be willing to take away the amendment and come back at Report with a government amendment that would help to satisfy their critics that they genuinely want to ensure that primary consideration is given to the best interests of children. I beg to move.

Lord Roberts of Llandudno (LD): My Lords, I speak wholeheartedly in support of the noble Baroness, Lady Lister, who I would call our noble colleague. I thank her and the Refugee Children’s Consortium for all the work they have done in putting these amendments together. I want to stray, as I do sometimes, to the words of David Lloyd George in 1919, when he said that he wanted to build a world,

“fit for heroes to live in”.

We want to build a world fit for children to live in. That is what we aim for and that is why here, as elsewhere, we are emphasising the best interests of

5 Mar 2014 : Column 1375

children. I do not need to speak to the amendments at great length as the arguments have already been well presented to us by the noble Baroness, Lady Lister.