Amendment 33 would require that the courts must first establish what are the best interests of any affected child before going on to consider other factors. Amendments 40, 42 and 45 would take into consideration children who have been in the UK for less than seven years. Why should a child not qualify for family rights just because they have been here for less? What about children who are under the age of seven? How should we respond to their needs? They do not fall into the Bill’s current definition of qualifying children whose welfare must be taken into account.

Mention was made of the Joint Committee on Human Rights, which this week published its second legislative scrutiny report. The report stated:

“We welcome the Government’s acceptance that a deprivation order should not be made without taking full account of the impact on the whole family unit, and with regard to the best interests of any child affected. To ensure that the best interests of the child are treated as a primary consideration, as required by Article 3 UNCRC, we recommend an amendment to the Bill which requires the Secretary of State to take into account the best interests of any child affected when deciding whether to make a deprivation order under the new power”.

As has already been mentioned, there is an impact on so many people in so many different ways. There is the impact on fostered children. Clause 14 invites judges to consider whether an individual has a genuine and subsisting parental relationship with a child when deciding whether to deport or remove them. However, this does not take into account children who are fostered. We will speak about them later in Committee. The removal or deportation of their carer would have serious consequences for those children. That should be taken into account.

The Government are arguing that it will normally be straightforward for children who have lived in the UK for less than seven years to accompany their parent and adapt to life abroad, but that ignores the fact that, in two-parent families, the parents may well be divorced. Little children will have to face the appalling choice of leaving one parent behind in the UK or being split from the removed or deported parent for the rest of their childhood. The organisation Bail for Immigration Detainees produced a report in 2013 called Fractured Childhoods. We should all look at that as it contains some compelling and powerful examples.

Why, if the Government believe that children’s best interests will be properly considered within Clause 14, should not the need to safeguard children be made explicit in the Bill?

6 pm

Lord Avebury: My Lords, Clause 14 circumscribes the freedom of the courts to interpret Article 8 of the ECHR dealing with the right to respect for private and family life. We know from the Minister’s reply to an earlier amendment and from paragraph 18 of the letter that he wrote to noble Lords after Second Reading that there are to be further restrictions in the rules and guidance about what the courts can do regarding Article 8. This clause in effect instructs the court or tribunal which is required to determine whether a

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decision to remove or deport someone breaches Article 8 to have regard to considerations which are set out at some length. In particular, it invites the court to consider factors that could make the best interests of the child less than paramount in deciding whether the child’s family should be removed.

The noble Baroness, Lady Lister, mentioned the case of ZH (Tanzania), in which a child’s best interests lay in remaining in the UK, and the question was whether the carer should be removed. In that case, the noble and learned Lord, Lord Kerr, said:

“What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present … and it will require considerations of substantial moment to permit a different result”.

It seems to me that the Government are saying to the courts that in future they should decide against the appellant where the circumstances are similar to those in ZH, although, of course, it would be possible that, having considered the factors listed in Clause 14, the courts could find that the “substantial moment” test had not been satisfied. Possibly, too, if our own courts throw out carers wholesale, even where the best interests of the child dictate that they should be allowed to remain, a different view will be taken in Strasbourg. I would like to know whether the Government thought about that in drafting Clause 14.

The doctrine of “margin of appreciation” allows states a degree of discretion when taking legislative action in the area of a convention right, but the limits of discretion are defined by case law. Only a narrow margin of appreciation is permitted where a particularly important facet of an individual’s identity or existence is at stake—see Evans v UK—and, perhaps even more closely relevant, where an “intimate aspect of private life” is at stake under Article 8—see Dudgeon v UK, where it was ruled that there must be particularly serious reasons before interference on the part of public authorities can be legitimate in those cases.

The Children’s Commissioner wrote a letter to the then Minister for Immigration in August last year about the operation of the Immigration Rules, and some of the matters that she raised then are directly relevant to this clause. Article 9(1) of the CRC provides for a child’s right not to be separated from his or her parents other than in strictly defined circumstances and where it proves necessary in the child’s best interests. There is a positive obligation on the state to ensure that a child is not separated from its parents unless the child’s best interests require it. The commissioner is now considering the effect on children of this clause, and it would be useful to know whether she was consulted about the drafting.

I am concerned that this clause undermines our obligation under the CRC and that it may lead to unnecessary litigation, damaging to our reputation at the European Court of Human Rights. I hope that it will be reconsidered before Report.

Lord Pannick: My Lords, I add my support to the general concerns expressed so eloquently by the noble Baroness, Lady Lister. I have two questions for the Minister. First, can he confirm, as I assume he will, that nothing in Clause 14 is intended to detract from the important principle of law that the best interests of the child are a primary consideration for decision-makers

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in this context? It is important for Pepper v Hart purposes that the noble and learned Lord makes the position unambiguously clear.

Secondly, before Report, will the Minister please undertake to give further consideration to the advantages of referring in Clause 14 to the best interests of the child? I ask that question as I have some difficulty in understanding how the test in new Section 117C(5)—that is, exception 2: the test of whether the effect of deportation on the child would be unduly harsh—is compatible with looking to the best interests of the child as a primary consideration.

Baroness Smith of Basildon: My Lords, this is one of three groups of amendments around Article 8 that we have tabled to Clause 14. I wish to make a couple of brief comments. I want to put on record, and make very clear, that we fully support Article 8. We understand that it is not an absolute right. It is a qualified right and those qualifications also have to be understood. Any interference with that right has to be within those qualifications. However, we share concerns about how Article 8, and those qualifications, have been interpreted in some cases involving foreign criminals convicted in the UK and then put up for deportation. There are problems with criminals who we cannot deport who have committed serious crimes, and where Article 8 has been considered to be used inappropriately, and where the question has to be asked whether the qualifications have been fully considered. The balance is one to be reached by the courts in individual cases, but we consider it right that Parliament should set out how qualified rights should be balanced in different areas.

There is wider concern about the Government’s failure to deport foreign criminals and the gap between the inflammatory rhetoric used on some occasions with regard to immigration issues and the reality of those issues. Since the Home Secretary took office, the number of foreign criminals being released into the community has gone up and the number of people removed from our country for breaking the rules has gone down by 13% in the past three years. I say to the Minister that it is important for the Government to get the basics right before looking at new areas—for example, ensuring that we have the right staff and the right number of staff in place to deal with these issues.

I listened very carefully to the noble Baroness, Lady Lister, and I was relieved when the noble Lord, Lord Pannick, said that he was slightly confused about a contradiction that appears to have arisen in this context. I am a non-lawyer and I was confused as well. I was relieved to hear that lawyers can also be confused about the Government’s intentions in this regard. The noble Baroness, Lady Lister, made a very powerful speech and I will be interested to hear the Minister’s comments on it.

I welcomed the comments of the then Minister, Mark Harper, to the JCHR about the Government’s responsibilities under the UN Convention on the Rights of the Child. There was absolute confirmation that the best interests of the child will be considered. However, other comments have been made that appear to qualify that. That would seem to undermine the concept that the best interests of the child will be considered. I do not mean to be facetious when I say that it sounds as if

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the best interests of some children will be considered. I do not understand the contradiction between what is in the Bill and the very welcome comments made by the former Minister that the Government will always consider the best interests of the child. How does that conflict, confirm, or work with what is in Clause 14? Confirmation from the noble and learned Lord that the best interests of the child will be considered would be very welcome.

Lord Wallace of Tankerness: My Lords, I thank the noble Baroness, Lady Lister, for introducing this amendment, and thank those who have raised very important points in relation to children and the best interests of the child.

I crave the indulgence of your Lordships’ House to take a few moments, before I reflect on the specific amendments, to set out briefly what was in the Government’s mind in bringing forward this clause, and how we expect it to operate and what it is expected to achieve. I do so to set it in context for this and the next two groups of amendments.

Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life. As the noble Baroness, Lady Smith, said, it is a qualified right. The individual’s right under Article 8(1) can be outweighed by measures necessary for and proportionate to the legitimate aims under Article 8(2), including protecting the public by deporting foreign criminals and safeguarding the United Kingdom’s economic well-being by controlling immigration.

There is a clear public interest in these aims. These are also matters of public policy which we believe is the responsibility of government to determine, subject to the views of Parliament. Clause 14 will make clear what Parliament thinks is in the public interest in terms of controlling immigration and protecting the public where Article 8 is engaged in an immigration case. It is for Parliament to decide what the public interest requires. It is then for the courts to have due regard to that when considering the proportionality of any interference in the exercise of an individual’s right under Article 8. We believe that is the right approach and that is reflected in how Clause 14 has been framed.

The Committee will recall our debates on the new Immigration Rules on family and private life which were implemented on 9 July 2012. The Immigration Rules, laid before Parliament by the Secretary of State under Section 3(2) of the Immigration Act 1971, are a statement of the normal practice to be followed by the Secretary of State’s caseworkers in making immigration decisions under the statutory framework that Parliament has provided. It is in the interests of a clear, consistent and transparent immigration system in which applicants and the public can have confidence that these rules should enable the Secretary of State’s caseworkers to decide individual cases lawfully and in accordance with the Government’s immigration policy. The courts have agreed the importance of having such a set of rules —for example, in the decision of the Judicial Committee of your Lordships’ House in the case of Huang.

The key test that both the Secretary of State and the courts apply in assessing the Article 8 compatibility of a decision is whether it is proportionate. However, in immigration decisions engaging Article 8, the courts,

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prior to the July 2012 rule changes, were unable to give proper weight to the Government’s and Parliament’s view of the public interest because the Immigration Rules did not adequately reflect Parliament’s view on how the balance should be struck between the individual right to respect for private and family life and the need for effective immigration control to protect the public and the economic well-being of the United Kingdom.

I shall provide a bit of history. When the Human Rights Act 1998 was commenced in 2000, the rules were amended to require all Home Office staff to carry out their duties in compliance with its provisions, but there was no substantive change to the family or private life part of the rules to reflect how individual rights and the public interest should be balanced. There was no attempt thereafter to align the rules with developments in case law, such as the decisions of the Judicial Committee of your Lordships’ House in the cases of EB (Kosovo) and Chikwamba. Instead, previous Secretaries of State asserted that if a court thought that the rules produced disproportionate results in a particular case, the court should itself decide the proportionate outcome on the facts before it. This approach meant that the courts could not give due weight to the Government’s and Parliament’s view of the public interest under Article 8, as the courts did not know what that view was. It also did not properly reflect the responsibility of the Government and Parliament for determining the public policy framework under which immigration decisions should be taken. Indeed, as I have already said, it left the courts to develop public policy themselves through case law on issues such as the appropriate level of maintenance for family migrants. We do not believe that that was conducive to clear, consistent and transparent decision-making by the Secretary of State’s caseworkers.

It was against that background that on 9 July 2012 the Government implemented major reforms of the Immigration Rules relating to private and family life. The new rules filled the public policy vacuum that had been inherited by setting out the position of the Government on proportionality under Article 8, in the light of existing case law and of evidence such as the report of the independent Migration Advisory Committee on the appropriate level of the minimum income threshold for sponsoring family migrants. The new rules were debated and approved by the House of Commons on 19 June 2012 and were debated by this House on 23 October 2012, following which the noble Baroness, Lady Smith of Basildon, withdrew her Motion of Regret. The new rules set out how the balance should be struck in Article 8 cases between an individual’s rights and the public interest. They provide clear instructions for the Secretary of State’s caseworkers on the approach they must normally take, and they therefore provide the basis for a clear, consistent and transparent decision-making process. The new rules also form the basis for the assessment by the courts of the proportionality under Article 8 of immigration decisions. The Court of Appeal has endorsed the lawfulness of such an approach in the case of MF (Nigeria).

The courts have a clear and proper constitutional role in reviewing the proportionality of measures passed by Parliament and of the executive decisions made

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under them, and must ultimately decide on what is a proportionate interference under Article 8. I should stress that Clause 14 does not seek to change this proper judicial function. However, it is right that the Secretary of State should expect the courts to give proper weight to the view endorsed by Parliament on how, broadly, public policy considerations are to be weighed against individual family and private life rights when assessing Article 8 in any individual case. The courts themselves have underlined the importance of the view of Parliament on such matters and have confirmed that they will defer to that view where it is known.

However, some judges have since given only limited deference to the new rules, and say that they represent only a weak form of parliamentary scrutiny. The Upper Tribunal has said that,

“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these”—


“decisions are binding ... and will be followed”.

I hope that I will not embarrass the noble and learned Lord, Lord Mackay of Drumadoon, by quoting him. He said in the case of MS v the Home Secretary in the Extra Division of the Inner House last year:

“The rules are not a statute but merely a statement by the executive of how it intends to exercise powers conferred by statute. Consequently the application of the rules in individual cases is potentially subject to judicial review. Nevertheless, the new rules have been debated in Parliament, which confers a certain degree of democratic approval. Moreover, they are instructions put forward by the minister in a democratically elected government who is charged by statute with the administration of the immigration system. To that extent, too, the rules can be said to result from democratic processes. These are factors which must be given some weight when a court considers the application of the rules, although they cannot be conclusive because the rules do not have the force of statute”.

By bringing forward Clause 14 we seek to invite Parliament to give the status of statute to the rules, which are set out substantially in the same terms as the Immigration Rules that your Lordships’ House debated in October 2012.

6.15 pm

The courts have asked for the clearest possible indication, through primary legislation, of Parliament’s view of what the public interest requires. This clause is our response to that invitation. It assists the courts by setting out plainly the weight they should attach to the countervailing public interest in considering Article 8 in an immigration case. Clause 14 introduces a new Part 5A to the Nationality, Immigration and Asylum Act 2002, containing four new sections which require a court or tribunal when determining whether Article 8 is breached in an immigration case to have regard in particular to certain considerations when considering the public interest under Article 8(2). The clause sets out what the public interest requires in immigration cases where there is a qualifying partner or child, and makes additional provision for cases involving a foreign criminal.

I stress that Clause 14 does not encroach upon the proper judicial function of considering whether the Executive’s decision is proportionate—that is, whether the public interest outweighs the Article 8 rights of the individual on the facts of the particular case. Clause 14

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will put beyond doubt Parliament’s view of the public interest in immigration cases engaging Article 8. It will, as primary legislation, give the strongest possible weight to that view and require the courts to have regard to it. The Upper Tribunal invited Parliament to legislate on these matters and that is what, through this clause, we are doing.

I am grateful to your Lordships for allowing me to set that out because it provides context on these important issues. Concerns have been raised in the amendment moved by the noble Baroness, Lady Lister of Burtersett, and supported by my noble friend Lord Roberts, on the need to safeguard and promote the welfare of children in the United Kingdom. I also recognise and acknowledge the work of the Joint Committee on Human Rights for its consideration of these issues. The noble Baroness, in moving her amendment, and the noble Lord, Lord Pannick, referred to putting such a provision into the Bill.

However, perhaps it is important to state—I shall say it more than once during my remarks—that in immigration the two main legal provisions that govern our obligations towards children are the United Nations Convention on the Rights of the Child and Section 55 of the Borders, Citizenship and Immigration Act 2009, which is usually referred to as the “children duty”.

These provisions, as interpreted in particular by the Supreme Court in ZH (Tanzania), establish the best interests of the child as a primary consideration in considering proportionality under Article 8. The noble Baroness properly and fairly set that out. She did not claim it to be the paramount interest and said that she was not using the matter as a trump card. There is no dispute between us on that. That interpretation means that the Secretary of State must have regard to the best interests of the child as a primary consideration and ask whether any other considerations outweigh it. Clause 14 is compatible with our legal obligations towards children and has been designed to take proper account of children’s best interests. The Government recognise that as an important consideration, and the Bill reflects that. The clause applies when a court or tribunal is considering Article 8 in an immigration case, and sets out what the public interest requires. These are the countervailing factors that must be balanced against the best interests of the child.

New Section 117B relates to non-criminal cases. We have had regard to the children duty under Section 55 of the 2009 Act, and new subsection (6) sets out that the public interest does not require the removal of a person who has a qualifying child where it would not be reasonable to expect that child to leave the United Kingdom. New Section 117C applies additional public interest factors to foreign criminals. Again, we have had regard to the children duty and subsection (5) provides that, where the foreign criminal has been sentenced to less than four years’ imprisonment, the public interest does not require deportation where there is a qualifying child and the effect of the criminal’s deportation on the child would be unduly harsh. The noble Lord, Lord Pannick, asked whether that was in conflict. We do not believe that it is. I obviously respect the noble Lord’s views and will reflect on that, but we do not believe that it is in conflict, given that

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ultimately the individual decision on proportionality, taking into account the individual circumstances of a case, will be a matter for the courts.

The test is higher for criminals because of the greater public interest in their deportation. This distinction was accepted by the noble and learned Baroness, Lady Hale, in ZH (Tanzania). Therefore, both the economic interests of the United Kingdom and the prevention of disorder and crime are legitimate factors to weigh in the balance when considering the children duty, while the maintenance of effective immigration control goes to the prevention of disorder or crime as well as safeguarding the economic well-being of the country. However, unsurprisingly, criminality is a weightier factor.

Amendment 33 would require the court to consider, first, the best interests of any child affected by the decision before going on to have regard to other considerations. I am sympathetic to this amendment but I do not believe it is necessary. The Supreme Court found in ZH (Tanzania) that the best interests of children are to be a primary consideration in assessing proportionality under Article 8. It also found that “a primary consideration” is not the same as “the primary consideration”, still less when compared with “the paramount consideration”. The law is clear that the best interests of a child can be outweighed by countervailing factors, including the public interest in controlling immigration and protecting the public.

Case law is also clear that a child’s best interests can be considered in any order in the decision-making process provided that it is considered properly and that sufficient weight is placed on the welfare of the child. The amendment is about process rather than substance and it would, as has already happened, result in technical legal arguments about process rather than substance. We believe that the framing of Clause 14 is fully consistent with the correct legal approach to the children duty. Rather than ignoring or overlooking the best interests of the child, Clause 14 provides very specific protection for a qualifying child, similar to that contained in the July 2012 Immigration Rules, which were debated and endorsed by Parliament.

Amendments 40, 42 and 45 would take out the definition of a qualifying child and bring all children into the scope of Clause 14. However, Clause 14 does not purport to set out how Article 8 will operate in detail in every case. The clause specifically addresses the situation of a “qualifying” child, and it clarifies the public interest where such a child is involved. However—I want to emphasise this as I think I was invited to do so by the noble Baronesses, Lady Lister and Lady Smith, and the noble Lord, Lord Pannick—that does not mean that the rights of other children are ignored. Consistent with Section 55 of the 2009 Act, the Immigration Rules and supporting guidance set out the detail of how the public interest under Article 8 operates in other types of cases. The best interests of a child in the United Kingdom will continue to be a primary consideration in all cases, whether or not the child is a “qualifying” one. I do not think that I can make it any clearer than that for the record.

The Bill defines a “qualifying” child as a child who is a British citizen or has lived in the United Kingdom for a continuous period of at least seven years. I was

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asked why the period of seven years is in the definition. Clause 14 provides very specific protection. The provision recognises that the passage of time and the level of ties in the United Kingdom that the child may develop over that time may make it unreasonable to expect the child to leave the United Kingdom. However, in cases where the child has lived here for less than seven years, there is not the same private life justification for allowing them to stay. In EA (Nigeria) in 2001, the court said that in the case of very young children from birth to age four, the child is primarily focused on themselves and their parents or carers. It said that very young children do not typically form any deep or strong friendships outside the family, such as will happen as the child grows up and begins to develop more independence.

We have acknowledged that if a child has reached the age of seven, he or she will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and may be developing social networks and connections beyond the parents and home. However, a child who has not spent seven years in the United Kingdom either will be relatively young and able to adapt or, if they are older, will be likely to have spent their earlier years in their country of origin or another country. When considering the best interests of the child, the fact of citizenship is important but so is the fact that the child has spent a large part of his or her childhood in the United Kingdom.

Baroness Lister of Burtersett: I am sorry to interrupt the noble and learned Lord but I thought I would do so now rather than wait until my response at the end of his remarks. I did address the argument concerning the seven-year period—that point had already been made. I asked specifically why, as the noble and learned Lord said, the case refers to children aged four when the period given is seven years. I gave a specific example of how I know personally that a child under seven can have very strong connections outside the family. The Minister has not addressed that point.

Lord Wallace of Tankerness: My Lords, as I think the noble Baroness alluded to when she moved the amendment, in the Public Bill Committee in the other place my honourable friend Mark Harper, who was then the Immigration Minister, indicated that the age of seven had previously been brought in as a concession —known as DP5/96, from which I assume that it was brought in in 1996—against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying Article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what Article 8 required and it led to uncertainty and inconsistency. Therefore, the period of seven years had applied before.

I do not disagree that there may be cases that need to be looked at individually but the important point that we are seeking to make here is that it is for Parliament to indicate what it believes the age of a qualifying child should be. We are saying that in our judgment it should be seven, for the reasons I have articulated. I also indicated that ultimately it will be

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for the courts to determine the proportionality of a decision. However, passing this primary legislation will give a strong steer and an indication to the courts of what Parliament believes to be in the public interest. That is a judgment that the Government have made. I think I am right in saying that it was in the 2012 rules, which have been considered and which we now invite Parliament to endorse and to put into primary legislation.

The noble Baroness asked whether I could confirm that guidance will be published and how the Section 55 duty will apply in relation to cases considered. I confirm that it is our intention to publish guidance setting out how the best interests of the child will be considered. As I have already said, Section 55 requires the Secretary of State to have regard to the best interests of the child as a primary consideration, and the Bill does not change that.

I will write separately to the noble Baroness, placing a copy in the Library, in response to her query about the response to the asylum report and the consideration of children’s best interests. The Home Office response to the UNHCR report on asylum is still being considered.

Amendment 43 would replace “unduly harsh” with “disproportionate” when considering the effect on the partner or qualifying child of the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more. However, this would not reflect sufficiently clearly the weight that should be attached to the public interest in the deportation of such a foreign criminal. Nor would it achieve the aim of the legislation, which is to set out clearly how the Secretary of State and the courts should approach the proportionality test, taking account of the public interest as properly determined by government and Parliament.

We believe that the children’s best interests must be a primary consideration. We fully accept that and Clause 14 is carefully designed to reflect that. However, it is simply not the case that a child’s best interests will outweigh every other possible countervailing factor, including illegal immigration and serious criminality. Nor is it the case that the UK is obliged to allow all migrants who are parents to remain in the UK where this is in one child’s best interests, ignoring the interests of other members of the public, including children.

In cases that do not fall within the scope of Clause 14, consideration will still be given to the individual facts of the case having regard to Article 8 and Section 55. Clause 14 does not seek to cover every possible situation in which an Article 8 or Section 55 issue may arise. That would be too complex and unwieldy.

In EA (Nigeria) the court said that, in considering the best interests of a young child, the correct starting point is to assume that it is in the best interests of a child to live with and be brought up by his or her parents unless there are very good reasons why that is not the case. Therefore, where the child is being removed with their parents and as a family to that family’s country of origin, that is not a breach of Article 8 and we believe that it is consistent with the children duty in Section 55.

I hope that the House will agree that technical legal arguments about whether the best interests of a child is “a” or “the” primary consideration, or the order in which various factors must be considered, can be a

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distraction. The important point is that we comply with the obligation to treat the best interests of the child as a primary consideration. We believe Clause 14 is entirely consistent with that. The noble Baroness’s amendment has afforded me and other parts of the House the opportunity to make that very clear. However, we believe that the amendments would draw lines in the wrong place. For those reasons, I invite the noble Baroness to withdraw her amendment.

6.30 pm

Baroness Lister of Burtersett: My Lords, I am very grateful to all noble Lords who have spoken in support of the amendment, and to the Minister for setting out the context for this clause and his very full response to the amendments. Before turning to best interest, which is the primary purpose of the amendment, I want to go back to the issue of the “qualifying child”. I still have not heard a justification for the age of seven, other than that it happened to be in a previous concession. However, we do not know why that happened. When I was making the point about how children under the age of seven—let us say between the ages of four and seven, given the court case which referred to the age of four—noble Lords were nodding their heads all around me. Everyone recognises how a young child can develop really important attachments beyond the family. I have not heard any convincing argument against that from the Minister. I hope he will take that away and reflect further on the age of seven. Should we not be thinking about a younger age—say, four—given that court case? The point has been made that the key issue is the age at which children go to school. In this country, children go to school before the age of seven.

The main point of the amendments is the “best interests” of the child. I am perplexed. I thought that there was no disagreement in principle between us. I am very grateful to the Minister for putting things clearly on the record, as requested. He has placed great emphasis on the need for clarity in the Bill. Yet the noble Lord, Lord Pannick, who is not someone to be confused by legislation, is confused by the Bill. The Joint Committee on Human Rights, which is charged by Parliament to advise it on the human rights implications of legislation, is very clear that this needs clarifying in the Bill. I do not think that it would lead into technical process arguments rather than substance arguments. Therefore, while I am pleased to have it confirmed that there is no difference in principle between us, in the interests of clarity and reassurance to a great number of organisations concerned with the interests of children, I do not think that I have heard one convincing argument as to why this amendment or a similar one cannot be accepted.

Despite what the Minister has said, I hope that he will take the issue away and think about it further because I certainly will. I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Amendment 34

Moved by Lord Mackay of Drumadoon

34: Clause 14, page 12, line 37, at end insert “Welsh or Gaelic”

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Lord Mackay of Drumadoon (CB): My Lords, in speaking to Amendment 34, I shall also refer to Amendments 35 to 37, all of which are in my name on the Marshalled List. These amendments seek to amend Clause 14 and arise from points raised with me by the Law Society of Scotland when it considered the terms of the Bill as it was introduced to your Lordships’ House. I should confess that, having listened to the Minister referring to one of my judgments, I have a distinct feeling that I might be hoist by my own petard. Nevertheless, I intend to proceed.

As we are all well aware, Clause 14 is headed, “Article 8 of the ECHR: public interest considerations”. It seeks to amend the Nationality, Immigration and Asylum Act 2002 by introducing a total of four new sections to that Act. All four amendments would take effect in subsections (2) and (3) of new Section 117B to be inserted into the 2002 Act under Clause 14.

Amendments 34 and 35 have been enrolled because the terms of Clause 14 appear to fail to take into account the existence of the minority languages of Gaelic and Welsh, and the status that they respectively enjoy in Scotland and Wales and throughout the United Kingdom. By implication, it appears that the Government have ignored the fact that many who are able to speak one or other of those languages adopt it as their first language and, at the same time, contribute to the economic well-being of the United Kingdom.

It is instructive to have regard to some of the statutory references to the Gaelic and Welsh languages, which appear in legislation enacted by this Parliament and the devolved Parliaments. I shall deal first with the Gaelic Language (Scotland) Act 2005, which is an Act of the Scottish Parliament. The language used in that Act describes it as one whose function is to establish a body with responsibilities exercisable with a view to securing the status of the Gaelic language as an official language of Scotland. Section 1(3) of the 2005 Act provides that the functions of the bòrd set up are to be exercised with a view to securing the status of Gaelic as an official language of Scotland commanding equal respect to the English language.

Section 78 of the Government of Wales Act 2006, which was enacted by this Parliament, deals with the Welsh language. Subsections (1) and (2) of Section 78 place on the Welsh Ministers duties, first, to,

“adopt a strategy (‘the Welsh language strategy’)”,

as it is described in the legislation, setting out how it proposes to promote and facilitate the use of the Welsh language and, secondly, to,

“adopt a scheme (‘the Welsh language scheme’)”.

The latter requires to specify the measures that the Welsh Ministers propose to take for achieving the purpose mentioned in Section 78(3) as to the use of the Welsh language in connection with the provision of services to the public in Wales by the Welsh Ministers,

“or by others who … are acting as servants or agents of the Crown, or … are public bodies”.

As set out in subsection (3), the purpose,

“is that of giving effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle that in the conduct of public business in Wales the English and Welsh languages should be treated on a basis of equality”.

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I have listened to what the noble and learned Lord has already said about how the Government are responding to judicial pronouncements about the need to clarify what may lie within the public interest for the purposes of Article 8. However, that raises the question of what the Government considered before they lodged this Bill in the terms in which it currently stands. In particular, it would be of interest to know whether the Government gave any consideration at all to allowing an ability to speak Gaelic or the Welsh language to be considered as equivalent to being fluent in English for the purposes of this legislation. It is particularly of interest because it is very doubtful that if Clause 14 were amended in the way that these two amendments suggest, much abuse could or would be made of such terminology. For these reasons, Amendments 34 and 35 would amend Clause 14 in the terms set out.

I accept that the need for an individual seeking a visa to enter the United Kingdom or an order entitling him to remain here needs to rely on a variety of factors. However, in these circumstances, an ability to speak Gaelic or Welsh being something that could validly be relied on would bear in mind the experience that many of us have in the different parts of the United Kingdom in which we live, where people who are members of an ethnic majority have moved into an area and acquired an ability to speak one of these minority languages and have done so happily over many years.

Amendments 36 and 37 would also amend the terms of new Section 117B(2) of the 2002 Act. As drafted, they provide that persons who can speak English,

“are better able to integrate into society”.

That may be so, but it is not an absolute truth. Accordingly, the amendment is enrolled to delete the word “better” and substitute the words “likely to be” to reflect the reality of the situation. In a similar vein, Amendment 37 would amend the terms of new Section 117B(3) of the 2002 Act to delete the assertion that those who are financially independent,

“are less of a burden on taxpayers, and … are better able to integrate into society”.

It is suggested that there is no necessary connection between financial independence and being better able to integrate into society. For that reason, Amendment 37 has been enrolled in the terms set out in the Marshalled List. I beg to move.

6.45 pm

Lord Roberts of Llandudno: My Lords, I am delighted to support this amendment from another part of the Celtic community. I do so because the Bill says that you can integrate more easily if you speak English, but that is not so in many of our Welsh communities. There are still 600,000 people in Wales alone who speak the Welsh language and in some villages and areas of Wales it is the first language. It is the language of the community, the chapel, the church and the pub. It is their language. If someone came from a distant place and wanted to settle there, they would feel lost. They would need to be able to speak that local Welsh language.

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As has already been said, we battle on to maintain the language. About 21% of the people of Wales speak Welsh and the Government of Wales have a Welsh Language Policy Unit, which spends about £14.5 million a year to promote the Welsh language. We also have Welsh television, S4C—S Pedwar C yn Gymraeg—which will claim £90 million to £100 million per year. This is all investment in the language. If somebody came from a distant place to a Welsh village without any knowledge of the Welsh language, you might say that they should learn English. However, we have only one other Welsh settlement of any size in the world, which is Patagonia. That is where 10,000 people speak Welsh and Spanish. What if one of those people—it happens—wanted to become a teacher or a church minister in Wales? They would not be accepted unless the amendment were also accepted by the Committee.

There does not need to be a great fuss about this. We do not have millions of people speaking Welsh in the world, but we do have a certain number who might well be interested in coming to the homeland—to the land of their fathers and grandfathers—and they would not be welcome because they do not speak English. I will not go to Patagonia to invite them to come over immediately, but if this amendment is passed, I would be delighted to go to Patagonia and invite those people from the Welsh tradition to come up.

Lord Judd (Lab): The noble Lord makes a powerful and emotional, in the best sense, statement in favour of the amendment. Will he tell me what its implications would be for an Englishman wanting to settle in that community?

Lord Roberts of Llandudno: It would not hurt that Englishman in any way at all. We would still allow people who speak only English to come into Wales, but we would allow those who do not speak English but who do speak Welsh or even Scottish Gaelic—we might have one or two from the highlands wanting to come to Wales—to come in. I urge the Minister, as a fellow Celt, who I know has the well-being of our communities at heart, to give a thought to this, although perhaps not in the wording of this particular amendment. Is there no way that we could allow those who do not speak English but who do speak Welsh, Scottish Gaelic or Ulster Gaelic to come along? I am sure that there is a way, and we can show the nations of Wales, Scotland and Northern Ireland that we still consider them brothers and partners in this United Kingdom.

Baroness Smith of Basildon: My Lords, I hesitate to engage in this Celtic discussion. I am half Scottish, which might help, and I recently visited Patagonia. All the people in the Welsh community I met there also spoke English, curiously, otherwise we would not have been able to communicate with them.

The amendments highlight something on which I need clarification. This is not the normal legal language that we see in legislation; it seems to be more a statement of fact or opinion. The noble and learned Lord, Lord Mackay, made a powerful point when he said that financial independence was not related to language. I am curious about the evidence base for the statement in the Bill. To be better integrated into

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society is easier to understand, but is being less of a burden on the taxpayer automatically the case? On what evidence did the Government base that before bringing it forward?

The provisions are confusing because this is not the usual legislative language that we see in Bills such as this. Is there any concern that the courts will not understand how to interpret the decisions that they are making? I am curious about what guidance the Government will provide relating to this specific part of new Section 117B(2).

Lord Wallace of Tankerness: My Lords, I thank the noble and learned Lord, Lord Mackay of Drumadoon, for this amendment and I thank my noble friend Lord Roberts for his spirited endorsement of it. I readily appreciate the concerns raised by the noble and learned Lord about the provision made by Clause 14 on the public interest in migrants being able to speak English and also in being largely independent. We believe that these are important elements of the provision made by Clause 14 as to the public interest in controlling immigration to safeguard the economic well-being of the United Kingdom under the qualified right to respect of private and family life under ECHR Article 8.

The noble Baroness, Lady Smith, said she thought that the language was not normal for legislation—it might actually be simpler in parts than in some legislation we have grappled with. The reason for that is one that I articulated when I set the scene. With Clause 14, we have basically sought to put in statute the Immigration Rules, which were debated and have been in place since 2012. In some places, the language is not in the usual statutory form because it has been substantially carried through from the Immigration Rules. That also answers the question of whether the courts will have difficulty interpreting it because of that. I do not believe that they should, because they have been interpreting these rules since the middle of 2012. The point is that they will now have, if Parliament so decides, the full force of statute rather than simply being rules. That also answers the point raised by the noble and learned Lord as to whether we had considered Welsh and Gaelic prior to bringing this clause forward. The answer is no, we did not, as this was being lifted from rules that were already there, which stipulated English.

As has been made clear, Amendments 34 and 35 propose allowing a migrant to rely on their ability to speak Welsh or Gaelic, instead of English, when applying for leave to enter or remain in the United Kingdom on Article 8 grounds. I want to make it very clear that I am not a Welsh or Gaelic speaker but that the Gaelic Language (Scotland) Act 2005, to which the noble and learned Lord referred, was brought forward by an Administration in which I was the Deputy First Minister. I do not think anyone can challenge my support for the Gaelic language. As my noble friend Lord Roberts knows, I have a strong affinity with my Celtic colleagues in Wales and have had very many enjoyable Welsh evenings at our party conferences, when the songs have been well sung in Welsh and English.

We believe that a command of English is essential in helping migrants integrate into the life of the UK as a whole and in improving their employment prospects.

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That is the case even if a migrant is living in a Welsh-speaking or Gaelic-speaking community. Indeed, the possible consequence of the amendments is that if someone were able to meet a test in Welsh, for example, along with all the other tests, they could get entry into the United Kingdom. Having done that, they might choose to not go anywhere near a small village in Carmarthen or Carnarvon but instead go to Newcastle upon Tyne, despite not really having a word of English.

We do not doubt that Welsh and Gaelic speakers would contribute to the economic well-being of the United Kingdom, but migrants to the UK should be able to speak English to a basic level when they apply to come or remain here. Speaking English is necessary to ensure that a migrant is able to integrate and play a full part in our society. The ability to speak English also reduces the burden on the taxpayer arising from the cost to public services of translating information or guidance into other languages. We do not believe that the inclusion of the Welsh and Gaelic languages in Clause 14 would support that objective. It would not reflect the public interest in reducing taxpayer burdens and promoting integration.

I also ask the House to consider some practical issues involved in making such provision. First, there is no infrastructure to support the testing of ability in these languages on a global basis, even I think in Patagonia —the noble Baroness may know whether we have a consulate there. Secondly, the demand is likely to be very low. There have been no requests for testing in Welsh or Gaelic as an alternative to English since the introduction in November 2010 of an English language requirement for spouses and partners applying to enter or remain in the UK. Thirdly, in view of the likely low demand, the setting up and maintenance of a secure and reliable global network of test providers would be unlikely to be commercially viable. If commercial providers were not willing to offer tests, it would fall to the Home Office to set up the required infrastructure in the United Kingdom and overseas. This would represent a significant and disproportionate cost to the taxpayer.

Amendment 36 seeks to amend the drafting of the integration aspect of the public interest in migrants being able to speak English. It clearly is in the public interest for a migrant seeking to enter or remain in the UK to be able to speak English. Parliament has already approved this for spouses and partners, for example as part of the family Immigration Rules. English language skills play an important part in a person’s successful integration into society and help migrants access employment opportunities and contribute to the wider society. However, although in some cases it may be true that migrants who can speak English are likely to be able to integrate, their ability to integrate does not rest solely on their ability to speak English. None the less, there can be no doubt that the ability to speak English will mean migrants are better able to integrate into British society.I therefore suggest that the intention here is better reflected in the current wording of Clause 14.

Amendment 37 seeks to remove the promotion of integration as a factor in the provision made by Clause 14 as to the public interest in migrants being financially independent in immigration cases which engage Article 8.

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Those who choose to establish their family life in the UK by sponsoring a non-EEA national partner and any dependent non-EEA national children to settle here should have the financial means to support themselves and their families for the long term without needing to rely on public funds. This safeguards the United Kingdom’s economic well-being by preventing burdens on the taxpayer. In addition, being financially independent also helps ensure that a migrant is able to integrate and play a full part in our society.

It is important, for example in facilitating community involvement, that migrants should be able to use local shops, local services and public transport in an ordinary, everyday way that is not inhibited by a lack of funds. The same applies to adult education resources, such as English language classes, for which a fee may be charged. This is consistent with available evidence on effective integration, which shows that the level of migrant household income is an important factor.

The OECD report, Settling In: OECD Indicators of Immigrant Integration 2012 has shown a clear connection between effective integration and the level of migrant household income. The report states that household income and wealth have been shown to be important for a broad range of socioeconomic outcomes, in areas as diverse as health, education and civic participation. The report also found that having insufficient income may hamper migrants’ ability to function as autonomous citizens, which may have consequences for social cohesion. The report underlines the importance of migrants having access to sufficient funds to enable them to participate in the life of their local community. Despite declaring that I support the promulgation of the Welsh and Gaelic languages, I think it would be inappropriate in this context, and in the light of these points I hope that the noble and learned Lord will agree to withdraw his amendment.

Lord Mackay of Drumadoon: I am grateful to noble Lords who spoke in support of my amendment. I am also very grateful to the noble and learned Lord not only for his very detailed response to my submissions and remarks on the present amendment but for some of his earlier responses, which will be of great interest to a number of people. In these circumstances, I seek leave to withdraw the amendment.

Amendment 34 withdrawn.

Amendments 35 to 37 not moved.

The Deputy Chairman of Committees (Lord Skelmersdale) (Con): My Lords, in calling Amendment 38, I must inform the Committee that if it is agreed, I cannot call Amendments 38A to 39A inclusive, by reason of pre-emption.

Amendment 38

Moved by Lord Pannick

38: Clause 14, page 13, leave out lines 5 to 11

Lord Pannick: My Lords, Amendments 38, 41, 44 and 46 are in my name and that of the noble and learned Lord, Lord Hope of Craighead, who regrets that he is unable to be in his place this evening.

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The Minister mentioned some of the history behind Clause 14 in his general comments in response to Amendment 33. This is not a criticism, but he omitted to refer to the fact that this subject has concerned the Home Secretary for some time; at least since her speech in autumn 2011 at the Conservative Party conference, when she referred to a Bolivian man who she alleged had avoided deportation because of his relationship with his cat. The Home Secretary returned to the subject in February 2012 in an article she wrote for the Mail on Sunday under the provocative headline, “It’s MY job to deport foreigners who commit serious crime —and I’ll fight any judge who stands in the way”.

The contents of this article were as combative as the headline. According to the Home Secretary, some judges did not understand Article 8 of the European convention on the right to private life, in particular in relation to deportation. They were ignoring the Immigration Rules and subverting our democracy. This is not ancient history because at the Second Reading of this Bill in the other place on 22 October 2013, the Home Secretary stated that these remained the concerns which formed the basis for Clause 14 of the Bill. She complained that,

“some judges have still chosen to ignore the will of Parliament and go on putting the law on the side of foreign criminals instead of the public.—[

Official Report

, Commons, 22/10/14; col. 162.]

7 pm

The first problem I have with Clause 14, and which motivated these amendments, is whether there really is a mischief that needs to be addressed. Can the Minister tell the Committee who are these rogue judges and how often tribunals and courts have, in the view of the Government, misapplied Article 8? Can he say how many cases that troubled the Home Secretary she brought to the Court of Appeal, and with what result? I ask these questions because similar ones were put by the noble Lord, Lord Rosser, in winding up for the Opposition in the Second Reading debate in this House on 10 February, at col. 520. They are, I respectfully suggest, important questions for the noble and learned Lord to answer, because a very serious allegation has been made against the judiciary. I do not speak for the judiciary, but I simply cannot understand the factual premise for Clause 14—and nor, if I may say so, can anyone else practising in this field to whom I have spoken.

The Minister said, again in debate on Amendment 33, that the Immigration Rules might be the subject of legal challenge because they are not in primary legislation and therefore that it is desirable to legislate. He also suggested that the noble and learned Lord, Lord Mackay of Drumadoon, by reason of his judicial observations, may be responsible for Clause 14. The history, as I have sought to point out, suggests otherwise, but in any event, as the Minister will know, the matter has now been addressed by the judgment of the Master of the Rolls, Lord Dyson, for the Court of Appeal in the case of MF (Nigeria) v the Secretary of State, decided on 8 October 2013 and reported in 2014 on page 544 of volume 1 of the Weekly Law Reports.

In that judgment the Master of the Rolls, speaking for the Court of Appeal, upheld the validity of the new Immigration Rules. His Lordship decided at

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paragraphs 42 to 44, accepting the submissions made on behalf of the Home Secretary, that the Immigration Rules are valid. They require tribunals to apply a proportionality test which recognises that something very compelling will be required to outweigh the public interest in the removal of someone liable to deportation. Can the Minister explain to the Committee what it is that the Secretary of State is now objecting to in any of this, and why we need Clause 14 in the light of the Court of Appeal judgment?

I have a second concern about Clause 14 which again informs these amendments. New Section 117B(4) and (5) do not merely set out the Government’s view of what factors should be taken into account in a deportation case, as the noble and learned Lord suggested in his comments on Amendment 33. New Section 117B(4) and (5) tell judges to give “little weight” to,

“(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person when the person is in the United Kingdom unlawfully”,


“when the person’s immigration status is precarious”—

whatever that means, because the term is not defined and will give lawyers many hours of gainful employment. The objection to new Section 117B(4) and (5) is that they will tell the judiciary how much weight to give to relevant factors. The problem with this, as the noble and learned Lord will understand, is that how much weight should be given to such factors will inevitably depend upon the facts of a particular case.

The Joint Committee on Human Rights said in its eighth report of this Session at, paragraph 60, that it was “uneasy” about this provision. The Joint Committee described it as,

“a significant legislative trespass into the judicial function”,

which appears to be “unprecedented”. I would have no difficulty with Parliament identifying public interest considerations for the courts and tribunals to take into account. No one could object to that. Parliament can perfectly properly specify factors such as those listed in new Section 117B(4) and (5), although of course judges already take them into account. The objection is that the proposed new section purports to tell judges what weight to give those factors in particular cases. That is a matter for the judge or the tribunal in the circumstances of the individual case.

I would also welcome information from the Minister on how new Section 117B(4) and (5) are to be applied in the event that the tribunal thinks that Article 8 and the proportionality test require that such factors be given more than a “little weight”. The Immigration Rules expressly state that decision-makers must act in accordance with the Human Rights Act 1998. The Court of Appeal judgment in MF (Nigeria) records that the Home Secretary accepted that the Immigration Rules were not intended to suggest the contrary. The noble Lord, Lord Taylor of Holbeach, who I am pleased to see in his place, has made a statement under Section 19 of the Human Rights Act on the front page of the printed version of the Bill that its provisions are compatible with convention rights. Can I therefore ask the noble and learned Lord to confirm that if in a particular case a judge or tribunal concludes that

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Article 8 requires more than little weight to be given to such factors, nothing in Clause 14 will require the judge or tribunal to decide to the contrary?

I should finally mention new Section 117C which purports to set out the criteria to be applied in deportation cases where the individual has been sentenced to a period of imprisonment. Again, I am concerned that these criteria are far too prescriptive and will reduce proper judicial discretion. For example, new Section 117C(4)(b) requires an applicant to show that he or she,

“is socially and culturally integrated in the United Kingdom”.

Can the Minister assist the Committee on what this concept means? Does the Muslim man living in Birmingham whose social and cultural life is in the Muslim community, and does the Jewish woman living in Hendon in the Jewish community, satisfy this criterion? Are they socially and culturally integrated in the United Kingdom? I am very troubled by Clause 14 for all these reasons, and I beg to move.

Baroness Lister of Burtersett: My Lords, I will speak to Amendments 38A, 38B and 39A. The noble Lord, Lord Pannick, has made a very powerful case against Clause 14, in which he referred to the report of the Joint Committee on Human Rights, particularly our concerns about the “little weight” point.

The Joint Committee acknowledged that Clause 14,

“could be considered to be Parliament's fulfilment of the important obligation imposed on it by the principle of subsidiarity, to take primary responsibility for the protection of Convention rights in national law by providing a detailed legal framework to give effect to them”.

But, as the noble Lord, Lord Pannick, said, we expressed our unease about the “little weight” provision, which we considered to be,

“a significant, and possibly unprecedented, trespass by the legislature into the judicial function”.

Our concerns remain despite the Government’s response to our report, which did not,

“specifically address our concern about these particular provisions going too far by seeking to prescribe the weight to be given to certain considerations, but merely repeats the Government’s general justification”—

this seems to be a pattern: the point is made and the Government justify it with exactly the same point without any real engagement with the arguments that are being made—

“for the provisions in clause 14 of the Bill: that it is ‘right and helpful that Parliament should set out what the public interest requires in the clear and practical terms reflected in clause 14, which reflect the case-law’”.

I think that the noble Lord, Lord Pannick, has fairly well demolished that argument.

The report continues:

“We remain concerned by these provisions in the Bill, which do not seek to guide the courts about the public interest considerations to be taken into account in deciding whether an interference with private or family life is justified, but rather seek to influence the amount of weight given to the right itself in particular types of case”.

The amendments to which I am speaking would give effect to the Joint Committee’s original recommendation that,

“the Bill be amended in a way which retains this as a relevant consideration to be weighed in the balance, but does not seek to prescribe the weight to be given to the right in that balancing exercise”.

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Lord Judd: My Lords, I am very grateful to the noble Lord, Lord Pannick, for introducing this amendment. He has raised a crucial matter. I have no legal qualifications whatever but as a citizen I care about the operation of the law. It is one thing for legislation to stipulate what issues should be taken into account, but to start saying how much weight a judge should give to particular considerations seems a dangerous precedent. Where is this going to stop? One of the things that is crucial to our understanding of justice and the operation of the law in this country is the independence and objectivity of the judge within the law.

This matters as a principle for all citizens in Britain because this move, if implemented, is a precedent, but it also matters very much in terms of community relations. How are we going to build positive relationships with our ethnic minorities if they feel that the Government are issuing such instructions to judges on how they must behave? The good will of ethnic-minority communities depends on their being able to depend on the law and the principles of the law as we like to claim they traditionally operate in this country.

I will not repeat all the anxieties that I have expressed at other points in consideration of the Bill, but all I can say is that we live in very dangerous times. I worry about the alienation of young people when they begin to say, “Look what is happening in reality”. This plays into the hands of sinister elements and I really think that this revision is an unfortunate and dangerous precedent. The whole House should be grateful to the noble Lord, Lord Pannick, for having alerted us, in his usual expert and convincing way, to the need to oppose Clause 14.

7.15 pm

Lord Brown of Eaton-under-Heywood (CB): My Lords, I have the misfortune to oppose these amendments and to take a different view, therefore, from that already indicated by earlier speakers. I welcome the general thrust of Clause 14.

It is hardly surprising that the Government are intent on clarifying as plainly as possible in primary legislation their policy with regard to Article 8 and the interests that Article 8 furthers. Initially they sought to do this by way of changes to the Immigration Rules back in June 2012 but the courts then said, correctly, in the judgment of the Upper Tribunal in a case called Izuazu:

“Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision”.

A little later the judgment quoted from a recognised work on constitutional and administrative law, as follows:

“An Act of Parliament has legal force which the courts are not willing to ascribe to other instruments which for one reason or another fall short of that pre-eminent status”.

It is not that the rules are vulnerable to legal challenge. As the noble Lord, Lord Pannick, rightly said, in a recent case the Master of the Rolls made it plain that the rules, for what they are worth, are perfectly lawful. But it is in these circumstances that the Government—to my mind, unsurprisingly—have chosen to translate their policy into primary legislation. Indeed, the Minister made this plain in his response to an earlier group of amendments.

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In the past, courts have rather too often tended to thwart the attempts of the Government to control immigration and deport foreign criminals on the basis of Article 8 interests. On occasion, they have carried the reach of this article beyond even the lengths to which the Strasbourg court itself has gone, and that court is no mean exponent of the art of dynamic and creative interpretation of the convention. Indeed, I said as much in a dissenting judgment I gave in 2011 in the Supreme Court in a case called Aguilar Quila. In that case, in reliance on Article 8, my colleagues struck down as not proportionate to Article 8 interests an immigration rule designed to combat the evil of forced marriages. I concluded there that:

“Article 8 is a difficult provision which has already led to some highly contentious, not to say debateable, decisions. Upon that I am sure we would all agree. In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases”.

I do not say that the deportation even of foreign criminals is as sensitive a matter as preventing forced marriage but, undoubtedly, it is one that gives rise to wide public concern.

I am strongly in favour of the United Kingdom remaining fully committed to the European Convention on Human Rights—and the Human Rights Act, which gives effect to it domestically. However, I can think of nothing more calculated to induce government to conclude that the nation’s better interests may in fact be served by abandoning our convention commitments than the continual frustration of government policy by an overenthusiastic interpretation and application of the convention, not least Article 8.

The amendments proposed here, particularly those of my noble and learned friend Lord Hope, for whom I have the utmost respect, and my noble friend Lord Pannick, eliminate from the face of the provision the relevance of foreign prospective deportees, and criminals in particular, having been here unlawfully or with only a precarious immigration status when their private lives or relationships were established. The Joint Committee’s recent report very helpfully looked afresh at this provision. Even it did not suggest that these were irrelevant considerations. On the contrary, the particular amendments that the committee proposed at paragraph 111—not, if I may say so, that anybody has yet explicitly adopted them—recognise and acknowledge the relevance of these sorts of consideration. Logically it would follow in the specified circumstances when someone is here unlawfully or under a precarious immigration status that the court would give less weight to whatever private life and relationship interests they have managed to build up. Why therefore not say so? That is precisely what Clause 14 now does. I do not see any distinction—certainly no critical one—between giving interests built up “little weight” and giving them less weight.

Judges will continue to honour their oaths to decide cases independently and objectively. Their entitlement to do so is by no means removed by this clause. In so far as in any particular case the judge considers that absolute Article 8 obligations require that there be no removal of the person concerned, there is nothing in this legislation to drive a contrary decision. Judges can give effect—indeed are duty bound to do so—to that

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conclusion as to the requirements of Article 8. However, government are entitled—it is what they are doing here in primary legislation as plainly as may be—to set out what their policy is and what they regard as the critical considerations in play in these cases. In short, I see much to be said in favour of this clause and nothing substantial to be said against it.

A final word just on children: clearly the best interests of all children, not just qualifying children, remain a primary consideration in all cases. Qualifying children are a particular concept introduced in respect of the removal of foreign criminals. Surely it is not difficult to see why their situation is singled out for particular special treatment. I am agnostic and neutral on whether that consideration should be spelt out not only under Section 55 of the 2009 Act giving effect to the interests of all children under our international convention obligations but also in this particular provision. It may not be thought necessary but if it is, so be it. However, I support the clause as a whole.

Baroness Smith of Basildon: My Lords, as a non-lawyer, I always take some comfort when the lawyers disagree on an issue. I have already stated our position on Article 8. We consider it right for Parliament to set out how the qualified rights of Article 8—the right to private and family life—should be balanced. However, as I think I indicated previously, we share those concerns that some decisions have been taken where we would ask whether the qualifications to Article 8 had also been appropriately considered when assessing the right to private and family life. I would disagree with the noble Lord, Lord Pannick, on that point.

However, I share his anxieties about some of the rhetoric around this debate. I recall the Home Secretary telling the Conservative Party conference that one individual had had his leave to remain granted on the basis of his private life and his family relationship with his cat. That proved to be absolute nonsense and unfair. There is a duty on all of us when discussing this issue to be measured and fair and to ensure that our facts are correct on all occasions.

I would like to probe a couple of areas with the noble and learned Lord. This may be the first debate on this where equal numbers of lawyers and non-lawyers have taken part. The noble Lord, Lord Pannick, and my noble friend Lady Lister made points about the language of the clause. The Government raised the issue of the interpretation of the legislation. However, I do not know whether any other legislation uses the term or gives advice that “little weight” should be given. If there are problems about “little weight” in terms of definition, will there be any clarification from the Government around interpretation for those taking these decisions? We are introducing a concept that could create the same problems around interpretation. It is appropriate that Parliament should state for the benefit of judges how we expect the interpretation to take place if the language is not familiar to them. That appears to be a problem in such cases at present.

7.30 pm

Lord Wallace of Tankerness: My Lords, I thank the noble Lord, Lord Pannick, for moving the amendment, which has given us an opportunity to air a number of

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important points, and I thank all noble Lords who took part in the debate. I do not intend to repeat what I said in my introductory remarks when we discussed the first group of amendments to Clause 14. However, in responding to noble Lords, I may have to repeat one or two of the points that I made.

I emphasise a point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. We have sought to put this into statute. The Government have come to Parliament to get Parliament to indicate clearly in primary legislation what it considers to be the matters in the public interest, given that Article 8 is not an absolute right under the European Convention of Human Rights but, rather, a qualified one. It is part of our debates that we should not only respond to invitations from the judiciary, but debate what that public interest should be. That is indeed what we are doing in debating these matters.

I turn first to Amendments 38, 38A, 38B, 39 and 39A. The noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Hylton, propose to remove the provision in Clause 14 that “little weight” in terms of the public interest should be given to family life with a partner, or to private life, which was formed when the person was in the UK unlawfully or to private life formed with precarious immigration status. The amendment of the noble Baroness, Lady Lister of Burtersett, would remove the statement of weight attached to the public interest in circumstances where private or family life was established with unlawful status, or private life was established with precarious status. The noble Lord, Lord Pannick, and the noble Baroness, Lady Smith, raised the issue of the wording of “little weight” and asked where that came from. The Human Rights Act requires courts to take into account Strasbourg judgments, but the requirement is not to follow them. However, the clause indicates that, in relation to precarious immigration status, we expect the court to follow the Strasbourg case law.

I digress for a moment, because the noble Lord, Lord Pannick, also said that precarious immigration status was not defined. As I understand it, Strasbourg case law makes it clear that it covers those temporarily in the country. It is a term that has to be interpreted by the courts, but that is the case whether or not the provision is in the Bill, as it is the correct legal test in determining what weight to give to Article 8 rights. “Precarious” is difficult to define in a Bill, as there are many different types of immigration status. If one takes the case, for example, of Rodrigues da Silva and Hoogkamer v the Netherlands, the European Court of Human Rights found:

“Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8”.

It was to capture that jurisprudence of the European Court of Human Rights, which the Government believe is a proper determination of such a situation, that that

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has been carried through into the provision in the Bill: that the courts, in taking into account Strasbourg judgments, would give little weight in those circumstances.

The clause reflects that those who enter the UK for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life that they develop must be seen in the context of the expectation of their returning to their country of origin. Those who form private or family life while in the UK unlawfully can have even less expectation of being allowed to stay here.

It is important that the immigration system rewards those who obey the rules and provides a clear disincentive to those who do not. These provisions make clear what we believe to be the public interest in that respect. As I said, they reflect the case law of the European Court of Human Rights in Strasbourg, which has consistently placed little weight on private or family life formed during a time when a person’s immigration status is precarious.

More generally, the Strasbourg court has made clear that the European Convention on Human Rights does not guarantee families a right to reside in a particular country and has consistently recognised that the Executive enjoy a significant margin of appreciation in determining how most appropriately to control immigration. Clause 14 is framed within the margin of appreciation afforded to states in this respect.

It is right that Parliament should make clear its view that little weight in terms of the public interest should be given to family life with a partner, or to private life which was formed when the person was in the UK unlawfully or to private life formed with precarious immigration status. We do not believe that that encroaches on the proper judicial function. It will remain a matter for the court to decide whether the weight to be accorded to the public interest as set out by Parliament in Clause 14 outweighs the individual’s right to respect for private and family life, and therefore whether the decision is proportionate in Article 8 terms.

The noble Lord, Lord Pannick, referred to the fact that my noble friend Lord Taylor of Holbeach had signed the Section 19A certificate in regard to the European Convention on Human Rights and asked whether we believe that it is consistent with it. The answer is: yes, we do believe that it is consistent. I understand that that was not challenged by the Joint Committee on Human Rights. I acknowledge that certain important points were raised, but I do not understand the Joint Committee on Human Rights to have challenged that.

In Amendments 41 and 44, the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope of Craighead, propose to remove most of the provisions setting out specific public interest statements to which the courts would be required to have regard when assessing an Article 8 appeal against deportation from a foreign criminal. The public interest statements in question set out when, in the case of a foreign criminal sentenced to less than four years’ imprisonment, the public interest will be outweighed by an individual’s private life in the UK, or by their family life with a qualifying child, or by their family life with a qualifying partner. The public interest statements also reflect a

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higher threshold for those sentenced to imprisonment of four years or more, which we believe reflects the very strong public interest in deportation, given the seriousness of these types of crimes. Only where there are very compelling circumstances will the public interest be outweighed by Article 8 rights in such a case.

The effect of Amendments 41 and 44 would be to leave just two statements of what is in the public interest when assessing whether it is proportionate to deport a foreign criminal: first, that the deportation of foreign criminals is in the public interest; and secondly, that the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. Much of the detail in the clause appears in the Immigration Rules, which Parliament considered in 2012. The two statements that would be left if Amendments 41 and 44 found favour with the Committee would not alone achieve the overall aim of Clause 14, which is to ensure that Parliament’s view of the weight to be attached to the public interest in deportation is taken properly into account by the courts when considering cases engaging Article 8, thereby achieving greater fairness and consistency in appeal outcomes.

Of course, as was acknowledged by the noble and learned Lord, Lord Brown, every appeal must be assessed on its individual facts and, where there is a right of appeal, the courts must ultimately decide what is proportionate in Article 8 terms. Clause 14 does not seek to change that proper judicial function; rather, the amendments would remove much of the framework which Clause 14 provides for weighing the public interest in the deportation of foreign criminals as part of that proportionality assessment.

We believe that the benefits of a framework set out by Parliament in primary legislation are clear. It is right that Parliament’s view of the public interest should be given proper weight in immigration and deportation decisions engaging Article 8. Such a framework will also bring greater efficiency, consistency, fairness and transparency of decision-making.

Parliament has not previously provided a full and clear statement in legislation on where the public interest lies in considering family and private life claims. As I said before, the 2007 Act requires the Secretary of State to make a deportation order against a foreign criminal sentenced to at least 12 months’ imprisonment, unless one of the several specified exceptions applies, including where deportation would breach the criminal’s human rights. Although an indication of the public interest, it is a limited view, and does not assist the courts in determining how to balance an individual’s right to family and private life against that public interest.

Inevitably, therefore, the courts have had to reach their own view on public policy imperatives. In other words, it has been left to the court in an individual case to determine how best to balance relevant factors, based on the decision-maker’s individual perception of public policy considerations. I am sure we all agree that it is right and proper for the Government to make decisions about public policy, subject to the views of Parliament, and ensure that the public interest is given proper weight.

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The statements of public interest contained in Clause 14 reflect the basis of the new Immigration Rules which was approved in October 2013 by the Court of Appeal in MF (Nigeria), as the noble Lord, Lord Pannick, said. The court found that the new deportation rules provide a “complete code” for dealing with Article 8 claims and that where specific family and private life exceptions to deportation were not met,

“it is necessary to consider whether there are circumstances which are sufficiently compelling … to outweigh the public interest in deportation”.

The noble Lord asked why we were doing this, given the decision of the Court of Appeal in MF (Nigeria). Looking at the chronology, I suspect we would find that the Bill was introduced into the other place almost within days of that decision being handed down. I can assure the noble Lord that legislation is not produced within days and is some time in the gestation. We thought it important, given that the Upper Tribunal has said in the case of Izuazu—I am sure that the noble and learned Lord, Lord Brown, would pronounce that name better—that:

“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these”,


“decisions are binding on the Upper Tribunal and will be followed by it”.

By putting statements into primary legislation, Parliament will have made clear its view on where the public interest lies and we expect the courts to have proper regard to that.

I also make the point in passing that the inner house of the Court of Session is on an appellate par with the Court of Appeal and that, as I cited earlier, the noble and learned Lord, Lord Mackay of Drumadoon, observed on the case that I referred to that these rules did not have the force of statute. It is important to observe that in that case, the inner house’s extra division actually upheld the position of the Secretary of State for the Home Department, so it is not as if we were crying foul or anything like that. It is also the case that MF (Nigeria) concerns deportation cases whereas Clause 14 concerns public interest considerations more generally. It will also enable the court to consider the public interest in family cases and private life cases that do not necessarily involve foreign criminals.

Unlike the Immigration Rules, Clause 14 does not contain requirements to be met but factors to be considered, in the form of public interest statements, to which the courts will be required to have regard. This recognises that there must continue to be an assessment of the individual facts of each case and that the decision on proportionality under Article 8 continues to lie, ultimately, with the court. The statements, however, ensure that Parliament has decided what the public interest requires and not the courts. In formulating the public interest statement that a foreign criminal sentenced to a period of imprisonment of at least four years must be deported unless there are very compelling circumstances, the Government took account of Parliament’s approach in approving the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This Act amended the Rehabilitation of Offenders

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Act 1974 to reflect that a sentence of imprisonment for a term exceeding four years will never be rehabilitated or “spent”.

Parliament therefore appears, in recent legislation, to have endorsed the position that a term exceeding four years’ imprisonment represents a very serious level of offending indeed. The Government consider that a custodial sentence of at least four years is one which means that it will almost always be proportionate to outweigh any family or private life considerations and, as such, would require compelling circumstances to lead to an outcome other than deportation. This is the approach we adopted for deportation cases in the new Immigration Rules, using the term “exceptional circumstances”. We are trying to bring greater clarity to decision-making, not return to the difficulty which the courts have already experienced in assessing complicated individual circumstances against case law in the absence of a clear statement from Parliament of what the public interest requires. To remove the exceptions to deportation from Clause 14, as proposed, would be to remove Parliament’s clear statement of its view of the weight that should be attached to the public interest in deportation, thereby undermining the purpose of that provision.

Finally, I turn to Amendment 46, tabled by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, which is contingent on Amendments 41 and 44. This would delete the provision explaining how to interpret references to a person who has been sentenced to a period of imprisonment of a certain length of time. As the House will appreciate, a definition of “a period of imprisonment” is required to ensure that there is no confusion in the application of Clause 14. Section 38 of the UK Borders Act 2007 sets out what constitutes,

“a period of imprisonment of at least 12 months”,

for the purposes of that Act. The interpretation for Clause 14 has been drawn from that and is necessary for the avoidance of doubt and to ensure consistency, both across primary legislation and in the application of the new provisions. In the light of these explanations I encourage the noble Lord, Lord Pannick, to withdraw his amendment.

7.45 pm

Lord Pannick: I am very grateful to the Minister and indeed to all noble Lords who have spoken on this important topic. The noble and learned Lord the Minister, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Smith of Basildon, all emphasised that it must be for government to ask Parliament to set out in legislation the policy on what factors should be taken into account, or may be taken into account, in the public interest in deportation cases. I have no quarrel with that but that is not the concern. What is objectionable in my view about Clause 14 is that legislation will tell the judges what weight to give to relevant factors in deciding a case which depends, inevitably, upon the particular circumstances of that case. That is a matter not for Ministers or for Parliament. It is a matter for the judge, looking at all the circumstances of the case and taking into account the factors which have been identified by Parliament as relevant.

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Lord Wallace of Tankerness: I sought to try to explain that that expression of little weight was really a way of putting into statutory form what we believe is in fact the practice of courts in the cases which are here. I think it was in the case against the Netherlands; I do not know the first name involved but the other was Hoogkamer. I am sorry not to get that right. We were seeking to say that we endorse what the position of the European Court of Human Rights has been on that. Whereas under the Human Rights Act the court is asked to consider and have regard to the Strasbourg jurisprudence, what we are seeking in this is to say that we agree that the court should follow the Strasbourg jurisprudence. This has not suddenly been conjured up; it is based on what we believe the courts would do.

Lord Pannick: I am grateful to the noble and learned Lord. The difficulty with that is that the Strasbourg jurisprudence recognises that although of course little weight should be given to these factors in many cases, there will be other cases where considerable weight should be given to these factors in the individual circumstances. They may be unusual or rare cases but the Strasbourg court is not saying that it is a rule that in every case involving family or private life, little weight shall be given to these factors. The difficulty about Clause 14 is that it purports to suggest that little weight must always be given to these factors, whatever the circumstances of the case. It does not say “other than in exceptional circumstances” or “normally”; it says that little weight shall be given to these factors. If the Minister wishes to come back on Report with an amendment that recognises a degree of judicial discretion, I shall be delighted to welcome it but that is what Clause 14 says at the moment.

The difficulty that the Minister faces is that he must recognise that there will inevitably be cases where a tribunal or a court, looking up at the facts of the case, decides that greater weight should be given to these factors. If I understood him correctly, the Minister accepted that if the court or tribunal decides in applying Article 8 that more than little weight is required to be given to these factors, then Article 8 must prevail. So Clause 14 is simply illogical and self-contradictory. It does not even achieve what the Minister says it is designed to achieve.

In introducing this group of amendments, I said that the Joint Committee on Human Rights had been unable to identify any precedent for legislation telling the courts what weight to give to relevant factors. I do not think that the Minister or indeed the noble and learned, Lord Brown of Eaton-under-Heywood, with their combined expertise and experience, have pointed to any precedent upon which Clause 14 should be based. I think that this is a constitutional novelty, and we will be creating a very unfortunate precedent by telling the courts what weight to give to relevant factors, when that must depend on all the circumstances of the case.

I am sure that we will be returning to this topic on Report. I ask the Minister to reflect on this matter and to see whether it is possible to meet the concern that has been expressed today, without doing any violence to the object of Clause 14, by putting in some wording that recognises in the Bill the retention of judicial discretion in this matter. For the moment, though, I beg leave to withdraw the amendment.

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Amendment 38 withdrawn.

Amendments 38A to 46 not moved.

Clause 14 agreed.

Amendment 47

Moved by Baroness Hamwee

47: After Clause 14, insert the following new Clause—

“Assessment of financial circumstances

When the financial circumstances of an applicant who seeks to enter or remain in the United Kingdom are to be considered account shall be taken of—

(a) the national minimum wage,

(b) the benefit to taxpayers and to society of the applicant acting as a carer,

(c) the applicant’s prospects of employment (including likely earnings),

(d) the prospects of employment (including likely earnings) of the spouse or partner of the applicant, and

(e) the interests of any child of the applicant who as a result of the refusal of the application may be separated from a parent.”

Baroness Hamwee: My Lords, Amendment 47 deals with financial circumstances when they fall to be considered in respect of an applicant seeking to enter or remain in the UK. I have quite deliberately framed the amendment as a new clause rather than seeking to amend Clause 14, where I am sure that I would be told that there was a very delicate balance that I should not be disturbing.

The Minister and I have debated before, and I suspect that we will again, the issue of the family migration laws that were introduced in July 2012, under which new financial thresholds are required to be met for an applicant to join a British citizen to whom he or she is married, or is a partner, in this country. The Minister will recall our discussions both about the financial threshold and about the impact on children who, as a result of the rules, find themselves separated from one parent. The impact is on families of British citizens and taxpayers.

I am well aware of the case of MM. I am not sure whether it is still being heard in the Court of Appeal. It started at the beginning of this week and we await the Court of Appeal’s judgment. I am aware that the Home Office has suspended decisions where the issue is a financial one, pending the outcome of the case. However, I could not let the Bill go by without a reference to what, week after week, I see as being very distressing circumstances. I say “week after week” because those who are affected by the rules, and noble Lords will understand this, cast around for those who may be interested and who may be able to take up their case. I am not really in a position to take up cases but I am certainly interested, and I therefore have a steady stream of e-mails and letters telling me of sets of circumstances that I do not think anyone could possibly have envisaged when the rules were brought into effect.

My amendment would seek to ensure that, where financial circumstances were to be considered, account would be taken, first, of the national minimum wage. The financial threshold where there are no children, in the case of the family migration rules, is £18,600,

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while the national minimum wage, worked for a 40-hour week, is in the order of £13,200. Secondly, account would be taken of,

“the benefit to taxpayers and to society of the applicant acting as a carer”.

I have come across a number of situations where the British citizen is caring for—usually—a child, and if that British citizen could be joined by his or her spouse then caring responsibilities would be shared, which would be to everyone’s benefit in a social, humane sense, but would also be a benefit to the taxpayer because it would lift the burden from them, too. Thirdly, I have referred to,

“the applicant’s prospects of employment (including likely earnings)”,

and those of the spouse or partner. I am aware of quite ironic situations where high-earning people have been defeated by these rules, even though they have great prospects not only of earning themselves but of bringing economic goods to the country, because there is no contract in place or history of earnings here to which they can point. I am aware of a number of situations where people have taken the decision to go and live in another country and apply their earning power there. Lastly, and very importantly, I refer to,

“the interests of any child … who as a result of the refusal of the application may be separated from a parent”.

I have already referred today to the impact on children separated from parents, and this is something that concerns me very much.

In the first instance decision, Mr Justice Blake referred essentially to these factors in the concerns that he expressed about the rules that are in place. One of his suggestions was reducing the minimum income requirement of the sponsor alone to £13,500 or thereabouts —very close to the figure that I have referred to.

I could speak on this for a long time, but I am of course aware of the debate that is to come and that noble Lords are gathering for it. I also know that the Minister is not in a position to roll over tonight, given the case that is in train. In all conscience, though, I had to raise this; it expresses my position and keeps the faith. I beg to move.

Baroness Lister of Burtersett: My Lords, I support this amendment. I remember that when we debated the original regulations in your Lordships’ House, I said I found it quite distasteful that we were introducing a means test for family life—a means test that, unlike other means tests, excludes the most disadvantaged rather than includes them.

Last summer I chaired a packed meeting for the Divided Families Campaign. We heard some heartbreaking examples of families who had been broken up as a result of these new regulations. Many noble Lords will be aware of the report produced by the All-Party Parliamentary Group on Migration on its inquiry into the new family migration rules. I will not go into any detail now because of the other debate that is about to happen, but there are plenty of examples there of the harmful effects of these regulations.

I cannot help but reflect that yesterday in your Lordships’ House the noble Lord, Lord Freud, created a false divide, suggesting that that side of the House supported marriage while this side could not care less

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about it. My concern is less about marriage as such; I am concerned about family relationships. It would seem that, when it comes to immigration, some marriages are more important than others and other marriages simply do not count. I am very glad that the noble Baroness, Lady Hamwee, has used this opportunity to remind your Lordships of the heartache that is being caused. Noble Lords may not receive a steady stream—I receive perhaps not quite such a steady stream—but we certainly receive a steady trickle of e-mails and letters about this. It is important that we keep this in the public domain because I do not think we can carry on like this for much longer.

8 pm

The Earl of Listowel (CB): I shall briefly speak to paragraph (d) of the amendment moved by the noble Baroness, Lady Hamwee, to draw to your Lordships’ attention today’s Financial Times. The headline reads:

“Migrants set up one in seven companies, study reveals”.

The article goes on to state that foreign businesspeople create 14% of UK jobs. I am sure that the Minister and the Government are very aware of the complexities of this issue. I hope it may be helpful to bring forward the information that was published today. Clearly, we do not wish to cut off our nose to spite our faces. If they are likely to contribute to the economy and generate jobs, we probably want to keep them.

Lord Teverson (LD): My Lords, I welcome this amendment moved by my noble friend Lady Hamwee. I was very pleased to add my name to it. This is an issue on which I am fairly young. I have got into it over the past year through people from North America, who were in my very old European constituency, who, having been married, are unable to come back and live together.

At Second Reading, I mentioned this, and the Minister responded in a letter. He interpreted my speech as being very much in favour of sham marriages and as saying that people had a right to them. That is completely untrue—I welcome every effort by the Government to stop the pernicious incidences of sham marriages—but this is not about that. This is about real marriages and people who are forced to part by the administrative regulations around financial means. This amendment is a sensible and measured way to balance humanity with economy. It perhaps makes choices a little more complex, but it particularly concentrates on the areas of carers, of saving taxpayers’ money, as my noble friend said, and where children are parted from one of their parents.

All sides of this House are in favour of strong family life. I am sure all sides of the House are also in favour of people being able to make an open choice about whom they marry. Those choices are not always sensible, and that is nothing to do with whether they live abroad or are of different nationalities. It is surely a British citizen’s right and expectation to choose freely whom they are able to marry in a real marriage. This is not all the way to that, but it is an excellent compromise towards finding a way forward. I hope the Minister will be able to respond in some sort of positive way at this time.

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Lord Rosser: Some very interesting points have been made in support of this amendment. We await with interest the Government’s response; namely, whether they think the issues mentioned in this amendment should be taken into account and, if not, why they are saying that they should not be or, alternatively, whether they will say that there is no need for this amendment because they would expect these matters to be taken into account anyway. We await with interest to hear the Government’s stance.

Lord Wallace of Tankerness: My Lords, I appreciate the concerns raised by my noble friends Lady Hamwee and Lord Teverson in bringing forward this amendment about the impact of the new family Immigration Rules and, in particular, about the impact of the minimum income threshold for sponsoring a non-EEA national partner and dependent children which was established by those rules. My noble friend Lady Hamwee indicated that we had discussed these matters, and I recognise that she chaired the All-Party Parliamentary Group on Migration’s inquiry into the issue, which was referred to by the noble Baroness, Lady Lister, and which reported in June last year.

I acknowledge the point made by the noble Earl, Lord Listowel. Of course we very much welcome those who have settled here and shown great enterprise. That applies to a considerable number of people. Their contribution is very welcome and not only enriches the community financially but enriches the diversity of different cultures and backgrounds in the community.

The new family rules implemented on 9 July 2012 seek to prevent burdens on the taxpayer and promote integration, in particular by introducing a minimum income threshold of £18,600 a year to be met by those wishing to sponsor a partner to settle in the United Kingdom, with higher amounts for sponsoring dependent children.

The level of the income threshold was set in the light of expert advice from the independent Migration Advisory Committee. The levels of income required are those at which a couple, once settled in the UK and taking into account any children, generally cannot access income-related benefits. The policy is also intended to ensure that family migrants are well enough supported to promote their integration into British society. The Government consider this to be a fair and appropriate basis for family migration that is right for migrants, local communities and our country as a whole.

A couple with an income equivalent to the national minimum wage can still access income-related benefits and tax credits. An income threshold set at that level would not be sufficient to prevent burdens on the taxpayer arising once the migrant partner had settled and could access welfare benefits. It would also not provide an adequate basis for supporting the integration of the migrant partner into British society.

Adjusting the income threshold to take account of a sponsor’s consumption of public services and the contribution they make to reducing pressure on those services, including by acting as a carer, would require a complex calculation and numerous assumptions. Such an approach would be more appropriate with an income threshold benchmarked to a sponsor’s net fiscal contribution which, based on the Migration Advisory

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Committee’s report, would be £25,700. This is based on mean household income and represents, in broad terms, the point at which a sponsor becomes a net fiscal contributor: someone who is paying into the public finances more than they are taking out.

We have built significant flexibility into the operation of the income threshold, allowing for different employment and non-employment income sources to be used, as well as significant cash savings. In recognition of their reduced earning capacity, an applicant whose sponsor has caring responsibilities and is in receipt of carer’s allowance is exempt from the income threshold. So, too, is an applicant whose sponsor is in receipt of a specified disability-related benefit. Instead, these applicants have to meet the previous requirement for adequate maintenance.

Employment overseas is no guarantee of finding work in the UK, and the previous and prospective earnings of the migrant partner are not taken into account in determining whether the threshold is met. If the migrant partner has a job offer in the UK which meets our labour market requirements for skilled workers, they can apply under tier 2 of the points-based system. The rules allow a British sponsor who has been working overseas and is returning to the UK with the applicant to work here to count their overseas earnings and a firm job offer in the UK. This means they can sponsor their family to come to the UK without being separated from them while they take up employment here. We also allow a migrant who is already in the UK and working here legally to count their earnings towards meeting the income threshold.

The minimum income threshold of £18,600 applies to those seeking to sponsor the settlement of a non-EEA national partner. It does not apply to those seeking to settle in the UK as the parent of a British citizen child or a child settled in the UK or as an adult dependent relative. Instead, these family members must show that they can meet the adequate maintenance requirement.

This amendment would apply to all applicants for leave to enter or remain, thereby imposing a stricter financial requirement than at present on other family members applying to settle in the UK. The amendment would undermine the maintenance requirements under the points-based system for students and skilled workers who are required to meet rules on maintenance that are relevant to their route. The amendment would also be contrary to the Clause 14 provision that it is in the public interest, and in particular in the interests of the UK’s economic well-being, that persons who seek to enter or remain in the UK are financially independent.

I know that my noble friend said that she did not expect any change tonight, given that there are certain legal cases; certainly, when I discussed this yesterday, the case was still in the Court of Appeal. I recognise what she says, but I hope that she realises that the effect of her amendment could, in some cases, disadvantage some people; there are particular provisions on carers to which I have referred. I hope that, in these circumstances, my noble friend will agree to withdraw her amendment.

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Baroness Hamwee: My Lords, about 20 minutes ago, as I reread my amendment just before we started the debate, I recognised the technical flaw in my drafting. I am sure that my noble and learned friend does not really hold that against me too much.

It would be inappropriate for me to take the Committee’s time to deal with everything that was said; there is much more that I could add. I will simply make a couple of points. On the specified disability allowance, it seems from the experience of somebody who has been in touch with me very recently that this is not quite what it seems on the face of it, because she is having great trouble. If the wife of a gentleman caring for an autistic daughter who is inevitably a burden on the state—I hate putting it that way—could come and join him, there would be much less of a burden on the state. To pick up the point of the noble Earl, it means that if there has to be a firm job offer, we are not welcoming in those with the entrepreneurial spirit that we say we wish to welcome.

I will not tax noble Lords’ patience further, because I want to retain some credit in order to be able to bring this back at a later stage—not necessarily in this Bill, but certainly in the future. I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

House resumed.

Assisted Suicide

Question for Short Debate

8.12 pm

Asked by Baroness Jay of Paddington

To ask Her Majesty’s Government whether they continue to be satisfied with the Director of Public Prosecutions’ Guidelines on prosecution for assisted suicide.

Baroness Jay of Paddington (Lab): My Lords, I welcome this opportunity to question the Government about their current position on this very difficult and sensitive area of criminal law. This debate is extremely timely. It is exactly four years since the then Director of Public Prosecutions, Keir Starmer QC, issued his policy for prosecutors in cases of encouraging or assisting suicide. At the moment, the Supreme Court is considering two cases which challenge those guidelines. Nine Supreme Court judges heard these cases last December and their judgment is due very shortly. Naturally, I do not expect the Minister to anticipate their findings tonight, but it is relevant to this debate to recognise that is widely expected that the Supreme Court will say, as so many other judgments have, that it is ultimately Parliament’s responsibility to determine the law on assisted dying.

Perhaps I may very briefly outline the law as it stands today. The Suicide Act 1961, which makes assisting suicide a criminal offence liable to 14 years in prison, is still in force. Under this Act, the DPP has always had discretion about whether to prosecute in particular cases, but until five years ago, when Debbie Purdy won her appeal to the Law Lords seeking clarity, that prosecutorial discretion has often been shrouded in obscurity and ambiguity. The Law Lords

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instructed the DPP to produce new, specific guidance, and after public consultation the existing guidelines were published in February 2010.

I must make clear at the outset that I very much support the introduction of those guidelines, and in general I commend the way they have operated. I think the guidance has been particularly useful in making clear that when a relative or friend who is wholly motivated by compassion gives assistance to a person who themselves has made informed decisions about the end of their life, the relative or friend is very unlikely indeed to be prosecuted. On the other hand, someone with malicious or selfish intentions who helps a suicide will almost certainly feel the full force of the criminal law.

Opponents of making any further change find this situation perfectly satisfactory. In their view—and I have heard this expression quite often—the law now has a “stern face but a kind heart”. It is a very elegant phrase, but I do not think that it accurately reflects reality. The existing guidelines, welcome though they are, do not give overall coherence to the law on assisted suicide. They do not offer sufficient legal protection and, most importantly, are inadequate to prevent unnecessary suffering at the end of life.

I have several concerns which I would like to raise with the Minister this evening. The most significant is the position of healthcare professionals. The guidelines state in general terms that prosecution is more likely if a healthcare professional, rather than a relative or friend, helps someone to die. However, the nature of any professional assistance is not defined. We can assume, I am sure, that if someone prescribed lethal drugs, that would result in a prosecution. But to what extent can a doctor or a nurse give counsel to a dying patient who wants to end their life, or, for example, advise and assist them to seek help abroad? These questions are not addressed in guidance and, consequently, considerable ambiguity remains.

Healthcare professionals can often feel unsure of their position. A bizarre illustration of this was told to me recently by Cameron Brown, whose 87 year-old mother was asked to leave her care home when it was discovered that she was a member of the campaign group Dignity in Dying. It was feared that if she did take her own life, the care home could be criminally liable.

It is not surprising, therefore, that suffering patients can be left to sometimes dubious solutions that they access on the internet, or to stop drinking and eating in order to bring forward an inevitable death. Of course, the hard-hearted answer to that, which we also sometimes hear, is that a dying person can always kill themselves without any assistance, and therefore without any possible legal threat to anyone.

Frankly, I have heard too many cases like the recent one of Kevin Davis to find that a remotely acceptable position. Kevin Davis, a middle-aged man with terminal renal cancer, received very good palliative care but was still suffering badly. He knew that he could not ask his health team for help to end his life and so, one evening, having been at home by himself, he was found by his family dead at the bottom of the staircase, I am afraid to say in a pool of blood. Afterwards his family said

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that Kevin was angry that he could not choose a dignified death at a time when his suffering became too much, and so had taken a rather sad and lonely way out. Of course, the paradox is that if his family had helped him, they probably would not have been prosecuted. But surely this is not a satisfactory position. The key question is whether it is sensible for the Government and Parliament effectively to condone compassionate amateur assistance to die while prohibiting professional medical assistance which might be equally compassionate and more skilfully gentle.

I am also concerned about how the guidance deals with the issues of mental capacity and decision-making. The guidelines say that to avoid prosecution, it must be established not only that the motives for assistance are compassionate but that the person who dies, referred to as the victim, must have made a settled and informed decision to do so. But obviously, as these are prosecuting guidelines, the investigation of the circumstances of death occurs only after the fact—after a person is dead. It is worth saying that even in the cases where a prosecution is not pursued, a police inquiry does take place. In an earlier debate introduced by my noble friend Lord Dubs, the noble Lord, Lord Blair of Boughton—who sadly regrets that he had to withdraw this evening due to the re-timing of the debate—described from his police experience the stringent way in which these criminal investigations proceed. As he said, the police treat such a case as a possible homicide. Family and friends are treated as suspects, and the process enormously increases the sadness and stress which follows any death.

However, the fundamental legal problem is this, as the guidelines themselves say:

“It may sometimes be the case that the only source of information about the circumstances of the suicide and the state of mind of the victim is the suspect”.

This seems to be a potentially absurd situation. Does the Minister agree that that kind of after-death investigation offers absolutely no protection to potentially vulnerable people whose relatives could both lie about their own motives and the deceased person’s state of mind? Surely it would be much safer to have a statutory law which allows assisted dying for mentally competent terminally ill adults in restricted and safeguarded circumstances—circumstances which could then be established and assessed while the person is still alive.

My third concern about the present legal framework is that the terms of prosecutorial discretion rest exclusively with the lawyer who holds the office of Director of Public Prosecutions. There is no certainty that the prosecution guidance could not be altered by successive DPPs. As far as I am aware, the newly appointed Director of Public Prosecutions, Alison Saunders, has not indicated that she intends to make any changes, but that is not a permanent guarantee.

The simple truth is that Parliament should act. Parliament should take the lead and not leave this complex legal and moral issue solely in the hands of the courts and the lawyers. At the very least we need an official assessment of the prosecution guidelines on assisted suicide and how they are working.

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Undoubtedly the guidance has clarified how the law is applied in certain circumstances, but it still causes distress to those who assist compassionately and forces those who cannot get assistance to suffer against their wishes. Beyond this, the statutory law still requires a crime to be committed before any post hoc investigation can take place.

I always say in my role as chairman of your Lordships’ Select Committee on the Constitution, “I am not a lawyer—but”. My “but” this evening is that this situation seems to me to be both incoherent and inadequate, and, more importantly in policy terms, unworthy of our open, ethically humane, 21st century society which does reflect individual rights. I look forward to the debate and the Minister’s response.

8.21 pm

Baroness Cumberlege (Con): My Lords, I thank the noble Baroness, Lady Jay, for initiating this debate and for introducing it so competently. I will be brief.

As your Lordships are aware, the policy for prosecutors was published in 2010 in respect of cases of encouraging or assisting suicide. A year after it appeared, the noble and learned Lord, Lord Falconer, chaired a group calling itself the Commission on Assisted Dying. The then Director of Public Prosecutions, Keir Starmer QC, told the group:

“There is a residual discretion for all offences whether to prosecute or not”.

He went on to say:

“This is a particular version of it. But it’s not unique by any stretch of the imagination; it’s the way our law operates”.

That is helpful, as it puts this particular policy into perspective. It is sometimes presented to us as something unusual, but it is not. As with many other offences, encouraging or assisting suicide can cover a wide range of criminality, from malicious assistance for personal gain to reluctant assistance after much soul-searching and from wholly compassionate motives. It is impossible to make criminal laws that cater for every conceivable circumstance. That is why we need discretion.

The judgment of the Supreme Court in 2009 was that the DPP should publish a prosecution policy in respect of encouraging or assisting suicide. The draft policy was subjected to a four-month public consultation, to which the CPS received nearly 5,000 responses. The policy that appeared four years ago was not, therefore, put together overnight. It is the result of careful thought and open consultation.

I am not in favour of trying to fiddle with the policy. There is no serious evidence that the law on encouraging or assisting suicide is not working as it should. Thanks to the deterrent effect of the present law, the offence is a rare one, and the few cases that occur tend to be those at the compassionate end of the spectrum, where prosecution is unnecessary. In the words of the former DPP to the group of the noble and learned Lord, Lord Falconer, the law “works well in practice”. I agree with him.

8.24 pm

Baroness Campbell of Surbiton (CB): My Lords, I, too, thank the noble Baroness, Lady Jay, for her consideration of the DPP guidelines.

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The DPP guidelines were produced only after extensive consultation. I was privileged to be involved in responding to that consultation on behalf of Not Dead Yet UK, the coalition of hundreds of terminally ill and disabled people who formed a group to oppose a change in the current law on assisted suicide.

In the consultation, the DPP asked what weight should be given to any progressive condition or disability experienced by the victim. We argued strongly that that was potentially discriminatory and fed into society’s prejudices that terminally ill and disabled people do not require equal protection of the law. I am happy to say that that was adhered to. As someone who from time to time must rely on medical interventions from doctors, I was thoroughly relieved to see that assistance with suicide by a doctor or nurse to a patient under their care is listed in the guidelines as an aggravating factor.

Terminally ill and disabled people are in a worse position today than was the case five years ago. National economic instability means that public support services are under more pressure than ever. That has hardened public attitudes towards progressive illnesses, old age and disability. Words such as “burden”, “scrounger” and “demographic time bomb” come to mind, and hate crime figures in relation to vulnerable people have increased dramatically. This is a dangerous time to consider facilitating assistance with suicide for those who most need our help and support. It is not only dangerous for those who may see suicide as their only option, but can be tempting for those who would benefit from their absence.

I am disappointed that there are Members who refuse to accept previous decisions made by this House and relentlessly bring the issue of assisted suicide back for debate again and again. One does not have to look very far to see where the slippery slope of legalising assisted suicide takes a country. Belgium has recently extended its law on euthanasia to include terminally ill and disabled children. That is not a future I want for our children or the most vulnerable, and this House has made it clear that it shares that view.

The DPP’s guidelines are to be celebrated as an essential tool in providing protection to society’s most vulnerable people. I trust that they will continue to enjoy the support of the Government and this House.

Lord Ahmad of Wimbledon (Con): My Lords, before the right reverend Prelate gets to his feet, I briefly remind noble Lords that there is a two-minute limit on each speech and ask them please to keep to that, because this is a time-limited debate.

8.27 pm

The Lord Bishop of Bristol: My Lords, I add my own voice of gratitude to the noble Baroness, Lady Jay, for introducing the debate tonight. The DPP’s guidelines rightly give a central place to compassion in this vexed area. After more than 150 cases have been actively inspected by the DPP, it should now be clear to all that where a suffering patient wishes freely and without coercion to end their life, their family or friends who, motivated wholly by compassion, assist him or her to do so will not be prosecuted. There are

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many reasons for not moving beyond that legal position as some other countries have, but I shall refer to just one.

The fear is that the current delicate balance established by the DPP’s guidelines and her continuing inspection of each case, together with a number of important legal judgments, would be damaged by further legislation. Such legislation will need to make some very complicated legal definitions and, going forward, it is difficult not to imagine situations in which there will be slippage from the original intention of the legislation.

Of course, supporters of legislation frequently argue that such legislation need not result in such slippage. However, recent evidence from Belgium is hardly encouraging. The very liberal 2002 law there had three grounds for adults. They should be competent and conscious, repeatedly make the request and be suffering unbearably—physically or mentally—as a result of a serious and incurable disorder. Now the Belgian Senate is extending this to children who are terminally ill and in pain, with no age limit set. The 2012 figure showed a 25% increase in euthanasia cases. Euthanasia is increasingly offered to adults with psychological problems, and there have recently been two cases—one involving a person who was depressed after a failed gender change operation being given euthanasia—which promoted much debate in Belgium. It would be a serious mistake to move away from the DPP’s guidelines and move towards the legal position in Belgium or even Oregon.

8.30 pm

Baroness Hollins (CB): My Lords, the current policy for prosecutors provides a clear picture of how prosecution decisions are made in this area of the law and what kind of circumstances might influence a decision to prosecute. But it also avoids sending the message that assisting someone to commit suicide is permissible under certain circumstances. Noble Lords will not be surprised if, as a past president of the BMA and the current chair of the BMA Board of Science, I remind the House that the BMA emphasised its opposition to any weakening of the existing prohibition on assisted suicide during consultation on this policy.

One factor listed in the policy for prosecutors as a potential aggravation of the offence is a circumstance whereby assistance with suicide has been provided by a doctor or a nurse to a patient under their care. Some, including the noble Baroness, Lady Jay, have claimed that this factor inhibits discussion between doctor and patient—that doctors are afraid to discuss the subject of assisted suicide with patients who raise it, in case such discussions should be construed as assistance and result in charges being brought against them. This claim is unfounded. The position was made quite clear last year in guidance issued by the General Medical Council, which I quote in full:

“Where patients raise the issue of assisting suicide, or ask for information that might encourage or assist them in ending their lives, doctors should be prepared to listen and to discuss the reasons for the patient’s request but they must not actively encourage or assist the patient as this would be a contravention of the law”.

I will also quote some of the evidence heard by the group chaired by the noble and learned Lord, Lord Falconer, when it examined assisted suicide in 2011.

“We don’t get asked about this very often”,

said a representative of the GMC.

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“It’s a subject which actually is a small issue in terms of numbers for our members”,

said the Medical Protection Society.

“I’ve not heard any colleagues mention it to me”,

said a consultant in old-age psychiatry. The group was told even more explicitly by the medical director of a hospice that,

“it’s quite clear that we can have discussions with patients. It’s the act of doing something with the intention of causing death that is illegal”.

These are all statements that concur with my own experience as a doctor and a psychiatrist. This is a criticism of the policy for prosecutors which simply will not fly. Doctors are not afraid to talk to patients about death and dying, and clear professional guidance is available for them, including from the BMA. The policy for prosecutors is carefully balanced. That some have chosen to misread it is regrettable.

8.33 pm

Lord Falconer of Thoroton (Lab): My Lords, we should move on from the guidance, which does not work legally or practically. Its effect is that the Director of Public Prosecutions essentially decides whether to prosecute based on the defendant’s motive, which is not an issue in any trial under Section 2, so the decision is made without the putative defendant having any opportunity to challenge the evidence on which not just the decision to prosecute is made but, essentially, whether guilt or innocence is involved. In 99% of these cases, the issue will not be motive but whether someone committed the act of assistance, and that will not be in dispute—for example, helping someone to go to Switzerland to take their own life.

The idea that that is a fair criminal justice process will not withstand examination as time goes on. In addition to its failure as a criminal justice process, it does not achieve its policy purpose, which is to be compassionate to those motivated by compassion and deter those who are not. In support of that, I rely first on the effect that the guidelines have, which is to encourage amateur assistance only and to drive people to Switzerland. There is no compassion in that. As for deterrence, see the numbers who are joining Dignitas go up and up. It does not work on either basis.

The reason why there are these guidelines is that Parliament will not address the issue. My Bill says that we should look at the issue before the death has occurred and recognise that it is not one that can be dealt with by a botch in the criminal law. It should be dealt with by examining the cases in advance and seeing whether compassion is involved, thereby providing proper protection to people who might otherwise be the victim of coercion. The very patronising approach being taken in relation to this in my view leads to a lack of compassion in cases where, above all, compassion is required, and no protection for the vulnerable.

8.35 pm

Lord Carlile of Berriew (LD): My Lords, I thank the noble Baroness, Lady Jay, for instigating this debate and for the way in which she introduced it. I am going to say something that I did not intend to say, because I

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have been so shocked by what the noble and learned Lord, Lord Falconer, has just said. He has demonstrated a scant and incomplete understanding of what the Director of Public Prosecutions does in these cases. What actually happened here is that the then Director of Public Prosecutions, Sir Keir Starmer, as I understand it determined these guidelines personally and with enormous care as a result of more than 5,000 representations. There is no case that shows that the guidelines have not worked well. The idea that they are not led by compassion is completely unrealistic. The Crown Prosecution Service considers every case on the basis of all the evidence placed before it. Everybody who is interviewed under caution in relation to such a case has the opportunity to tell their story in full, and is able to make extraneous representations—for example, through their solicitors. As a result, the former DPP and the present DPP consider every case on its facts, and apply the guidelines one by one. If there is an issue of compassion, then it is applied to that case.

The noble and learned Lord should not forget—indeed, the House should not forget—that there is a very important constitutional protection here, and that is the power of the Attorney-General or the DPP, as is appropriate in any given case, not to prosecute. That is exactly what is applied here compassionately in an interpretation of the law that works well and should not be changed.

8.37 pm

Baroness Finlay of Llandaff (CB): My Lords, the Director of Public Prosecution’s policy views, as an aggravating circumstance towards prosecution for assisting suicide, if that assistance is given by a doctor or nurse to a patient under their care—that is, within the duty-of-care relationship. Why is that? It is because—I speak as a doctor—patients are easily influenced by doctors and nurses: a word, a glance, a gesture can infer hopelessness. Patients trust us because they have to. They rely on us for information, believing that we have their best interests at heart. Patients can very easily be made to feel that they are a burden on the system, that the future is unrelentingly bleak, or that they would be better off dead. The subtle influences in a doctor-patient relationship are hard to quantify but very powerful, and hence potentially dangerous.

The Royal College of Physicians wrote to the Director of Public Prosecutions in 2009 during the consultation, stating:

“Our duty of care is to work with patients to mitigate and overcome their clinical difficulties and suffering. It is clear to us that this does not include being in any way part of their suicide”.

The Royal College of General Practitioners reinforced this view after an extensive consultation with its members lasting four months, in which 77% of GPs stated that the law should not be changed.

The policy does not inhibit open discussion about dying. Every day doctors have conversations with patients about their preferences as the end of life approaches, their treatment wishes and communication with the family. The General Medical Council makes it clear that we have a duty of care to listen to patients, discuss dying and explore their fears, and compels doctors to behave with compassion.

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The policy that we are debating tonight was welcomed by all sides of the assisted suicide debate, but is now being criticised as chipping away at the current law on physician-assisted suicide—a means of assisted suicide which the medical profession as a whole does not support.

8.40 pm

Lord Joffe (Lab): My Lords, the DPP guidelines on prosecution for assisted suicide are in general the most just and compassionate that the DPP could draft in the light of the current law. That is why the law needs to be changed to prevent suffering.

In paragraph 11, the DPP draws attention to the issue of mental capacity, the law on which was carefully analysed by Dame Elizabeth Butler-Sloss—the noble and learned Baroness, Lady Butler-Sloss—in 2002 in the case of Ms B v An NHS Hospital Trust. She concluded that,

“a mentally competent patient has an absolute right to refuse to consent to treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death”.

The learned judge then added:

“There is a serious danger, exemplified in this case, of a benevolent paternalism which does not embrace recognition of the personal autonomy of the severely disabled patient”.

It is accordingly clear that even a patient with the most serious physical disabilities, but who has mental capacity, has the same right to make decisions about his or her life as any other terminally ill patient.

Another issue often raised by opponents of assisted dying is the well worn legal maxim that hard cases make bad law. The response of Lord Justice Denning, one of England’s most respected judges, to this maxim was:

“It is a maxim that is quite misleading. It should be deleted from our vocabulary. It comes to this: ‘Unjust decisions make good law’: whereas they do nothing of the kind. Every unjust decision is a reproach to the law or to the Judge who administers it”.

Lord Denning, in this case—Vandervell’s Trusts 1974—was talking about the use of equity to mitigate the rigours of the common law. Parliamentary intervention can and should fulfil the same role in the case of other areas of the law such as assisted dying, which needs to be changed in order to prevent unnecessary suffering and to conform with the views of society. It is for society as a whole, rather than doctors, to decide this matter through the parliamentary process.

8.42 pm

Baroness Grey-Thompson (CB): My Lords, the policy we are debating was subjected to a serious public consultation before being finalised. The CPS website states that nearly 5,000 responses were received and the draft policy was modified.

The early policy listed,

“a terminal illness; a severe and incurable physical disability; or a severe degenerative physical condition from which there was no possibility of recovery”,

as a mitigating factor. I am so relieved that this was removed. This was done because it was considered that it could have the unintended effect of discriminating against people who are seriously ill or disabled by

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implying that assisting their suicide was of less concern than assisting the suicides of other people, as my noble friend Lady Campbell said. Disabled people face this discrimination every single day of our lives. As a disabled campaigner, I know that we have fought paternalism.

I refer to this change to the draft policy because it illustrates a wider issue. Those who want a change to the law are anxious to reassure us that their demands are limited to people who are terminally ill and that others such as the chronically ill or disabled people should not feel at risk. This argument does not hold up, as Belgium has shown us. It is the designation of one group that causes concern.

The law we have applies equally to all of us, irrespective of age, gender, race or health. The law that we have rests, as the noble and learned Baroness, Lady Butler-Sloss, has written, on a natural and easily recognisable frontier—the principle that we do not involve ourselves in bringing about the deaths of other people. Once we start redrawing the law arbitrarily around particular groups it becomes just a line in the sand. If it can apply to terminally ill people, why not chronically ill people? If chronically ill people, why not disabled people? Such a law is inherently unstable.

The need for equality of access and equality of protection was clearly recognised by the DPP when the policy was drawn up. We should recognise it if we should be asked, yet again, to consider legalising assisted suicide.

8.44 pm

Baroness Bakewell (Lab): My Lords, I speak as the writer and presenter of the BBC Radio 4 programme, “Inside the Ethics Committee”, which tells of individual dilemmas faced by those having to make decisions about terminal care.

Tonight I will speak of a particular case to make my point. A man is dying of motor neurone disease. He has written an advance directive saying he wishes his life to be ended when the suffering becomes too great. His lungs have collapsed and he is breathing through medical apparatus. His wife, who is at his bedside, asks that the mask be removed. The medical staff consult each other and consult her. They acknowledge the right of an individual to refuse intervention, but among the doctor and nurses are those who want no part in the final gesture. At a moment that needs absolute clarity and confidence in the decision-making there is none. How is the situation resolved? The doctor asks the wife to remove the mask. Husband and wife say their farewells, and she does so.

This moment is not only heart-breaking but demonstrates the feelings and thoughts that cloud decision-making at a crucial moment. Doctors are unsure what might ensue from any action they take and nurses are fearful for their professional reputation. This is totally unsatisfactory. Because the guidelines give health professionals so much room for uncertainty as to whether they will be prosecuted, it must be clear that when a lethal disease is killing someone, it is legally permissible that end-of-life care should include steps to minimise that final suffering. Medical practitioners attending dying patients should be required to acknowledge such an option.

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8.46 pm

Baroness Boothroyd (CB): My Lords, the campaign to reform the law relating to assisted suicide is supported by people from all walks of life and is, I hope, approaching a humane and sensible conclusion. The current Act has become a blunt instrument. It adds cruelly to the suffering of people who want to die with dignity and makes a mockery of a key principle of English justice, which requires the punishment to reflect the crime as specified by statute.

As it is, we are in such a muddle that the Act’s failure to meet today’s circumstances has to be buttressed by guidelines laid down by the Director of Public Prosecutions for fear of it causing greater controversy. We have abrogated our responsibility as a sovereign Parliament to an employee of the Crown. We should not tolerate this farming out of Parliament’s duty any longer, however hard the Supreme Court tries to rectify matters. That is Parliament’s job and the current law should be repealed to make way for a better one. It was meant to be a deterrent when desperate people who tried and failed to take their own lives were themselves liable to long terms of imprisonment.

I was struck by a report at the weekend about the trauma following the assisted death of a man suffering from the degenerative disorder Huntington’s disease that was slowing killing him, as it had some of his relatives. Responding to his pleas, his mother helped him die painlessly. She was tried at the Old Bailey and paid costs of £20,000. Instead of going to prison for 14 years, she was given a year’s conditional discharge and praised for her courage. Even so, the judge warned that others charged with the same offence could not expect such leniency. That cannot be right.

Few people have the means to end their days in a Swiss clinic where suicides are a paying proposition. Of course there must be robust and foolproof safeguards in this country for those who are terminally ill and wish to die with dignity. This is a moral issue whose time has come and Parliament should resolve it. I commend the Bill of the noble and learned Lord, Lord Falconer, for the debate that is long overdue and I hope the Government will provide the time needed for thorough and detailed scrutiny.

8.48 pm

Lord Warner (Lab): My Lords, however much we compliment the DPP on his guidelines, we have in effect put him in the role of an inquiring magistrate, as the noble Lord, Lord Carlile, made absolutely clear in his elegant address.

Unsurprisingly, the CPS has shown little appetite for bringing forward prosecutions of relatives and friends who assist someone to end their life. There has been only one successful prosecution for attempted assisted suicide since the new guidelines came into effect. However, the threat of prosecution still hangs over everybody, so Parliament now needs to respond to this very uncertain situation and provide an opportunity to consider the Bill of my noble and learned friend Lord Falconer—and, I hope, pass it. We now have groups of disabled people, health professionals and Christians calling for change—groups that, in the past, were portrayed as opposed to assisted dying.

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In effect, we have seen that this issue is no longer a matter for the chattering classes; it has penetrated the soaps and it has engaged the red tops in consulting their readers about change in this area. Parliament needs to wake up and smell the coffee. It should stop listening to the noisy minority of opponents and start listening to the majority of our fellow citizens who want to see a change in the law in this area. The cruelty of making terminally ill people prolong their lives when they wish not to and then threatening to prosecute their relatives who help them to secure the peaceful end they seek is increasingly seen for what it is: barbaric.

The long-standing opponents of change need to see their opposition for what it is: a denial of personal choice to a small minority of people who wish to control their exit from the world. I gently suggest to them that they are on the wrong side of history on this issue and that they risk ending up like the opponents of abortion, of the abolition of hanging and of gay marriage in a kind of “Jurassic Park” civil society.

8.51 pm

Baroness Murphy (CB): My Lords, I give my full support to the introductory speech from the noble Baroness, Lady Jay. However, I am abandoning the rest of my speech because I am so cross at what I have heard today, which I know to be totally false and I am tired of listening to it.

First, I say to the noble Baroness, Lady Campbell of Surbiton, that services for terminally ill people have got substantially better over the past five years. There is greater understanding and more talk about the issues surrounding death in hospital. The economic circumstances of this country have not led to greater disadvantage for people who are terminally ill; paradoxically, it has led to an improvement.

I should also like to tell the noble Baronesses, Lady Campbell and Lady Grey-Thompson, that it is impossible to conflate the problems of people who are terminally ill, are already dying and are about to die with those of people who have a chronic long-term disability and are not dying. We must distinguish between these two groups. That is crucial because they are completely and utterly different.

I should also like to say to my two medical colleagues behind me, the noble Baronesses, Lady Finlay and Lady Hollins, that, if their patients do not talk about dying or the wish to die when they are terminally ill, I just do not think they are listening very well.

Baroness Finlay of Llandaff: My Lords—

Baroness Murphy: I am sorry; I have only two minutes. Of course people talk about this. They do not sit there quietly. I read the BMA guidelines again today to make sure that I was up to speed—being a member of the BMA, I would, wouldn’t I?—and I can tell your Lordships that they make it very clear that you must not discuss any of these issues. I believe that the BMA circulated this guidance to everybody today and not just to doctors. Incidentally, we know that the BMA has never asked its members about this—I have never been asked by anybody in the BMA. Of course, it is led by people who are violently opposed to any new policy, so that is hardly surprising.

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My time is up but I must express my anger today. I am for the proposals put forward by the noble Baroness, Lady Jay.

8.53 pm

Lord Alton of Liverpool (CB): My Lords, in listening to the anger that the noble Baroness, Lady Murphy, has just expressed, I cannot help reflecting that this is not a new debate that we are having this evening. After all, we have had two Select Committees of your Lordships’ House, as well as numerous debates and indeed votes in your Lordships’ House, and we have heard the arguments of the British Medical Association—after a vote among its members—and the royal colleges, the disability rights organisations, the palliative care movements and many of the organisations that have been referred to. Once all the arguments were put for grounds of public safety alone, your Lordships decided that it was not safe to change the law.

The noble Baroness, Lady Jay, who introduced the debate quite properly this evening, reminded us that it is only four years since these guidelines were put in place, but we have even debated those on three successive occasions. The criticism of the guidelines largely has come from those who are, reasonably enough—it is legitimate—pressing for a change in law. Instead of shadow-boxing around the guidelines, it would, as the noble and learned Lord, and my noble friend Lady Boothroyd, said, be better for us to be debating whether we want to set aside the Select Committees that we have had and the decisions that we have taken previously, and change our own laws.

We are told that the guidelines have de facto changed the law because it implies that assistance with suicide will not be prosecuted if it has been given from wholly compassionate motives. However, almost in the same breath, we hear the contradictory complaint that the policy is inadequate because it does not give immunity from prosecution. Of course, neither of these contradictory charges has any foundation: the policy has not changed the law and its purpose is not to give certainty to potential law-breakers. To do so would indeed amount to changing the law.

The noble Baroness, Lady Jay, also told us that the policy places decisions in the hands of one person, the DPP, and that when the DPP changes so too could the policy. I think that I need record here only what the Solicitor-General said about this in another place just two years ago. He said:

“If a future DPP overturned the guidelines, he would be judicially reviewed for behaving in a rather whimsical way”.—[Official Report, Commons, 27/3/12; col. 1380.]

As your Lordships are aware, there is nothing odd or unique about these arrangements. Prosecutorial discretion is a feature of the criminal law as a whole and there are published prosecution policies on a range of criminal offences other than encouraging or assisting suicide. We should keep the law as it stands for reasons of public safety.