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House of Lords

Tuesday, 1 April 2014.

2.30 pm

Prayers—read by the Lord Bishop of Leicester.

Introduction: The Lord Bishop of Rochester

2.37 pm

James Henry, Lord Bishop of Rochester, was introduced and took the oath, supported by the Bishop of Leicester and the Bishop of Norwich, and signed an undertaking to abide by the Code of Conduct.

Electoral Fraud


2.41 pm

Asked by Lord Naseby

To ask Her Majesty’s Government, in the light of the recommendations of the recent Electoral Commission report Electoral Fraud in the UK, what action they propose to take to tackle electoral fraud.

Lord Wallace of Saltaire (LD): My Lords, we are carefully considering the Electoral Commission’s report and recommendations and will respond in due course. We are clear that any changes to the electoral system should be proportionate and not impose unnecessary barriers to participation by legitimate voters.

Lord Naseby (Con): My Lords, I welcome that Answer, as far as it goes, and pay tribute to the work of the Electoral Commission. However, are there not three key dimensions to its report: first, the integrity of the registration; secondly, ensuring that the person voting is the person who is on the register; and, thirdly and lastly, the accuracy of the count? I have had the privilege to win elections by 179 and 141 votes. Against that sort of background, can my noble friend give a commitment that there will, in the next Session of Parliament, be legislation on at least all these three dimensions of electoral law?

Lord Wallace of Saltaire: My Lords, I am not sure how one would legislate on the accuracy of the count. We have a whole system of poll watching, which noble Lords are all well aware of and which most of us, I am sure, have taken part in many times, to check the accuracy of the count. On the question of moving towards individual registration, the introduction of the national insurance number as a verifier is intended as a check on who is being registered. On the question of personation and checking on those who turn up, we are watching that very carefully and are now checking with police officers on reports. All the evidence we have is that the level of personation is extremely low.

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Lord Tyler (LD): My Lords, in contrast to my noble friend Lord Naseby, I was once elected with a majority of nine, so I take a considerable personal interest in this matter. On 6 February, we had some exchanges on this issue when my noble friend the Minister emphasised that the risk in this area is of course with postal votes. Can my noble friend now confirm whether every single postal vote cast in next month’s local and European Parliament elections will be checked against a personal identifier?

Lord Wallace of Saltaire: My Lords, that was the original intention of the 2006 Act. However, representations from electoral registration officers that that would be difficult led to the Act stating that a minimum of 20% should be checked. In recent elections, we have achieved virtually 100% of postal votes being checked, and we are now confident that with the co-operation of electoral registration officers, it will be 100% in the forthcoming general election.

Lord Kennedy of Southwark (Lab): My Lords, there must be zero tolerance for those found breaking the law, but any attempt to prevent millions of law-abiding citizens from being able to cast their vote by post would be hugely disproportionate. Why have the Government done absolutely nothing to get the more than 6 million of our fellow citizens who are presently not registered on to the electoral register? IER, when it is introduced, is not going to solve the problem; it is going to make it worse.

Lord Wallace of Saltaire: My Lords, as I have said before at this rostrum, the Government are doing a great deal to maximise the level of registration. We all recognise that we will never reach 100%. The proportion registered had been going down over the previous 15 years and we recognise that there are particular problems, especially with young people. A range of government schemes is currently under way, in co-operation with a range of non-governmental organisations, to raise in particular the number of disadvantaged groups and young people who register to vote. Online registration is but one of the things that we are doing.

Lord Dobbs (Con): My Lords, the basis of any fair electoral system must surely be one voter, one vote. Yet the constituency of the Isle of Wight has more than 111,000 voters while the outer islands constituency has barely 22,000. Is my noble friend able to offer any sensible explanation as to why a vote in the Isle of Wight—or in East Ham, Manchester Central or North West Cambridgeshire—is worth only one-quarter or even one-fifth of a vote elsewhere? Does he believe that this is in any way liberal or even vaguely democratic?

Lord Wallace of Saltaire: My Lords, I am sure that the noble Lord, Lord Dobbs, understands that the process of politics is not entirely rational. In the most recent discussions of electoral redistribution, there was an active campaign to prevent the Isle of Wight being split and there was an active campaign to exempt the various Scottish island constituencies. That is the reason for these exceptions to the general rule.

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Lord Wright of Richmond (CB): Will the Minister tell the House whether either the Government or the Electoral Commission have given any thought to following the example of Australia, Luxembourg and a few other countries of making voting compulsory?

Lord Wallace of Saltaire: The Government have considered everything, but that is not an idea that has led to enormous enthusiasm within government or, I suspect, within this House.

Lord Brooke of Alverthorpe (Lab): My Lords, is it not true that had the Government not taken an irrational decision, an ID card would now be being introduced? We would have been solving problems with registration because everybody would have been entitled to registration. They could have been checked for validity and they could have been voting. We would not have the problem to the same degree that we have with border control, immigration, the NHS, landlords and a whole range of different databases that have now had to be created by this Government. Will they not think again on that?

Lord Wallace of Saltaire: My Lords, we have been through that debate over an extended period. The Government are not persuaded that the original ID card scheme was necessary. It would be extremely costly. As far as voting is concerned, the level of allegations of voting fraud and impersonation is remarkably low. There were in the order of 179 allegations of different sorts of electoral fraud last year, for example, which is within a range of confidence as to the problems we face.

Lord Lexden (Con): Many believe that postal voting fraud is widespread. Is my noble friend confident that it is not?

Lord Wallace of Saltaire: My Lords, postal vote fraud has always been there. I am old enough to remember constituencies in which representatives of at least one party would go round old people’s homes and fill in the ballot papers with the matron. I will not name which parties might have been engaged in that. That is not new. Postal vote fraud is a problem with which we are all concerned. That is why postal vote identifiers have now been tightened up.

Lord Phillips of Sudbury (LD): My Lords, having correctly pointed out the appallingly low turnout for elections and, on top of that, the appalling low registration figures, does my noble friend accept that a major contributor to that parlous state of affairs is that so many young people feel outside the tent, so to speak, vis-à-vis politics, which is complex, and that people need some sort of education before they leave their schools? Will the Government do something about that?

Lord Wallace of Saltaire: My Lords, the noble Lord, Lord Tomlinson, has a Question on exactly that to be debated next week, which I look forward to answering. I must say that during the transition to

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individual electoral registration, the level of registration that we have so far achieved has been much higher than some of us originally worried might be the case.

National Minimum Wage


2.50 pm

Asked by Lord Young of Norwood Green

To ask Her Majesty’s Government what plans they have to mark the 15-year anniversary of the minimum wage, which took effect on 1 April 1999.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): Since 1999, the national minimum wage has grown faster than average earnings without an adverse effect on employment. Going forward, we want to ensure that the benefits of growth are shared equally. The best way to mark this anniversary is to commit to continue to deliver benefits to the low paid through the national minimum wage for the next 15 years and for many years thereafter.

Lord Young of Norwood Green (Lab): I thank the Minister for his reply and congratulate the Government on their new-found conversion to the benefits of the minimum wage—and even the living wage. It makes a pleasant change from the previous opposition of the Conservative Party and the CBI and their predictions that it would cause massive job losses. Does the Minister agree that the minimum wage depends on effective enforcement? What are the latest figures and are we actually naming and shaming those who are still not obeying the law? Are there any plans to increase the minimum wage?

Viscount Younger of Leckie: My Lords, the naming and shaming scheme, as the House will know, came into effect on 1 October 2013. The new rules are part of the Government’s efforts to toughen enforcement of the national minimum wage and to increase compliance. By naming and shaming employers, it is hoped that bad publicity will be an additional deterrent to employers who would otherwise be tempted not to pay the national minimum wage. The Government have accepted the Low Pay Commission’s recommendation of the first real increase since 2007. We welcome its assessment, and 2014 could mark the start of a new phase of bigger real increases in the minimum wage.

Lord Forsyth of Drumlean (Con): My Lords, does my noble friend agree that what matters is not the minimum wage but how much of your wage you take home in pay? Is not the Chancellor to be congratulated on implementing the policy of raising the tax threshold so that more of that money is kept—a policy, incidentally, first put forward by my noble friend Lord Saatchi some years ago but which, rather like pedestrian crossings in a constituency, has been hijacked by the Liberal party?

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Viscount Younger of Leckie: My noble friend makes a very good point: raising the tax threshold has been extremely important in helping the low paid. The Government are taking other measures, including on fuel duty, which remains frozen. The House should realise that wages in the private sector are now outstripping inflation and the OBR has predicted that that will continue until 2018. Indeed, current wage growth in the manufacturing sector is as high as 3.2%, so we are going in the right direction.

Lord Morris of Handsworth (Lab): My Lords, will the Minister follow the good practice of the Mayor of London and support not just the minimum wage but the living wage?

Viscount Younger of Leckie: The noble Lord makes a very good point about the living wage. It is good to note that 80% of all employers pay above the living wage, but I am the first to say that there is much more to do. The Government support employers who choose to pay the living wage. However, decisions on what wages to set are for employers and workers to agree, as long as employers pay at least the national minimum wage.

Baroness Humphreys (LD): My Lords, in too many instances, the minimum wage has become the maximum wage that employers are prepared to pay, leaving many workers trapped on low pay. As the economic recovery begins, what encouragement and support can the Government give to employers, particularly small businesses, to redress the balance and ensure that their employees can also reap the benefits of our improving economic situation?

Viscount Younger of Leckie: My noble friend may be alluding to the recent report from Professor Sir George Bain on the future of the national minimum wage. We are considering all the recommendations and their implications in advance of the 2015 LPC agreement. I agree with George Bain’s finding that the national minimum wage has been a huge success in improving low pay and reducing exploitation in the UK labour market. The Government, however, think that the simplicity of the national minimum wage and the independence of the LPC remain key to its success.

The Lord Bishop of Leicester: My Lords, in view of what the Minister has said about there being much work to do on the living wage, does he agree that a good way to mark this anniversary would be to commission an independent inquiry into the actual effects of raising the minimum wage to the living wage for everyone?

Viscount Younger of Leckie: I cannot comment on whether there should be another inquiry but it is fair to say that this strays into the territory of poverty. Perhaps I may reassure the House that this Government are very much focusing on poverty, which is very complex. There are all kinds of root causes for poverty,

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including household food security, and we are looking at this very carefully as well in the light of the national minimum wage.

Lord Kinnock (Lab): Does the Minister share my wry satisfaction at the fact that when I first proposed the national minimum wage as policy, I was roundly condemned by Conservatives yet now we have a Chancellor of the Exchequer who says that he aspires to increase it? Should not the Government take up the suggestion of the right reverend Prelate and begin to replace the national minimum wage with the living wage, which would mean a shift from £6.50 an hour to £7.45 an hour, and by that means begin to compensate the national minimum wage earners—who in real terms have lost £1,000 a year since 2000—and reduce the 9.4 million households which now exist at below the minimum income standard while, in the bargain, saving the Exchequer £5.7 billion a year because of the reduction in the need for the subsidies on which very low wage earners have come to depend?

Viscount Younger of Leckie: The noble Lord will know that the Government follow the guidance from the Low Pay Commission and have accepted all its recommendations. The new rate from October, which is a 3% rise in the adult rate, will mean that around 1.25 million low-paid workers will enjoy the biggest cash increase in their pay packets since 2008. As I have said, we encourage all employers to pay above the national minimum wage and to pay the living wage.

Senior Judiciary: Women


2.57 pm

Asked by Baroness Garden of Frognal

To ask Her Majesty’s Government what assessment they have made of the number of women in the senior judiciary; and what steps they are taking to increase that number.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, the Judicial Office produces and assesses annual statistics on the diversity of the judiciary, including gender diversity. The last publication was in April 2013 and the next one is due shortly. The Government are committed to playing their part in increasing judicial diversity, which includes the number of female senior judiciary. We introduced measures in the Crime and Courts Act 2013 to increase judicial diversity, including the equal merit provision and salaried part-time working.

Baroness Garden of Frognal (LD): I thank my noble friend. Although the Government should not interfere with judicial independence, there is public interest in the judiciary’s composition, which the Government have a responsibility to monitor. Given the lack of women in the senior judiciary, will the Government encourage a fresh look at the criteria for those roles to ensure that the competitions, for some of them at

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least, attach weight to the distinct qualifications and experience that women candidates have and take account of the different ways of operating and career paths of these women compared with the men against whom they are being assessed?

Lord Faulks: This is a difficult problem and the more that I have read about it the more difficult I think it is. It was much debated during the passage of the 2013 Act. The Government are doing their best to encourage diversity but the problem probably starts much earlier, in the structure of the relative professions. The number of women applicants for High Court positions is, sadly, still relatively low. That is less the case in the lower judiciary. The position is that there is one woman in the Supreme Court, and 19 out of 108 High Court judges are women, as are seven out of 38 Lords Justices in the Court of Appeal. This is a regrettable state of affairs and, clearly, we hope that things change.

Lord Beecham (Lab): My Lords, I declare a paternal interest since my daughter sits as a part-time district judge. Given the high proportion of women among criminal and family law practitioners in particular, will the Government rethink the position that they set out in their response to the Transforming Legal Aid consultation in which, in relation to the need to promote diversity, they said that even if the reform of legal aid were,

“to make the attainment of the objectives more difficult, we consider that the changes are necessary and justified”?

Will the Government accept that they have a responsibility in this area, rather than simply asserting, as they did in the same response, that for underrepresented groups like women and BME aspirants, the primary responsibility is that of the Bar and the solicitors’ profession?

Lord Faulks: I agree with the noble Lord that the primary responsibility is for the professions: the Bar Standards Board and the Solicitors Regulation Authority. The question of legal aid, we submit, is not the right instrument in order to encourage diversity. The provision of legal aid depends upon trying to target those most in need of legal aid in accordance with the available budget.

Lord Mackay of Clashfern (Con): My Lords, how many women have applied over the past 10 years for senior judicial appointments—that is to say, the Appellate Committee of the House of Lords, the Supreme Court and the heads of division—and how many were appointed?

Lord Faulks: My Lords, currently we do not disclose details of the number of applicants for the Supreme Court or the heads of division. There is a very limited pool from which applications can be made, and therefore it is thought that the publication of this information could lead to speculation about the identity of candidates and possibly discourage applicants. I can say, however, that in the High Court 81 applications were received in 2013 of which 17% were appointed.

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Baroness Butler-Sloss (CB): My Lords, I wonder whether, as a former woman judge, I might add something. I agree with what the Minister said about the problem being further down, but I wonder whether the Government might look at women who leave the professions, both the Bar and solicitors, because of the stresses of family life, who ought to be encouraged back several years later but will require some training? Nowadays, it is of course possible to go up the ladder, as indeed I did—my husband called it a hawsepipe—to go from a fairly junior position through to the High Court and even higher. You need to get the women back who have left because they have skills that are underused.

Lord Faulks: The noble and learned Baroness is of course right. That is probably a significant reason why more are not applying for the higher judiciary. There is flexible part-time working as a result of the 2013 Act, and I think that more people should be encouraged to sit part-time earlier in their career in order to develop the career pattern that will then make them more inclined to apply, and of course it is important that women who otherwise might not apply do so. I entirely accept that. It is something that the sub-committee on diversity and the judicial diversity task force, which are both concerned with this, are looking at very carefully.

Baroness Scotland of Asthal (Lab): My Lords, has the Minister undertaken any analysis of those who have applied but who have not succeeded? Is there any support for any such applicants to make them better able to make a successful application on the next occasion?

Lord Faulks: I think I have already given the answer regarding the percentage of applicants to the High Court Bench. One of the ways of fulfilling what the noble and learned Baroness has said is the system of mentoring. This is one of the suggestions being considered by the judicial diversity task force. The Lord Chief Justice is particularly keen to encourage diversity, and I know that the suggestion that the noble and learned Baroness makes is one that is very much on his mind.

Baroness Prashar (CB): My Lords, does the Minister agree that the progress of women at senior levels of the judiciary has been slow because what constitutes “merit” is defined predominantly by men in the senior judiciary and then assessed by panels that are predominantly made up of men?

Lord Faulks: As the inaugural chair of the Judicial Appointments Commission, the noble Baroness speaks with great authority. I entirely accept that the definition of merit is somewhat elusive, particularly equal merit. Whether you decide that there is clear water, as Lord Sumption said in his lecture on the subject, between all candidates or whether you say that there is equal merit between quite a number who have risen to the relevant level, it is then permissible to decide questions of diversity at that level in the appointment. Of course, there is plenty of anecdotal evidence that there has been too much a question of men seeking to promote men of a similar type.

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BBC Licence Fee: Non-payment


3.04 pm

Asked by Lord Fowler

To ask Her Majesty’s Government what plans they have to implement the decriminalisation of non-payment of the BBC licence fee.

Lord Gardiner of Kimble (Con): My Lords, the Government recently supported an amendment to the Deregulation Bill concerning licence fee non-payment that sets out a duty for the Secretary of State to ensure a review of the TV licensing enforcement regime and introduces a new power for the Secretary of State to change the sanctions that apply for failing to have a TV licence. Whether to decriminalise non-payment will be considered in the light of the review.

Lord Fowler (Con): My Lords, although I sympathise with the general argument, I wonder whether my noble friend thinks it is significant that some of the most enthusiastic legal and penal reformers in this area appear to be declared opponents of the BBC. Will the Government ensure that in guarding the interests of those who cannot afford to pay, they do not assist those who can afford to pay but simply want to evade the licence fee?

Lord Gardiner of Kimble: My Lords, in the review, the timing of any such change is crucial. The potential impacts on licence fee payers, the court system, the BBC and businesses must be considered. The review will be thorough. Clearly, it is very important that we achieve the best outcome for licence fee payers, particularly, as my noble friend said, those on lower incomes.

Lord Stevenson of Balmacara (Lab): My Lords, the process we are talking about is contained in a Bill that has yet to appear in your Lordships’ House. Therefore, to some extent, we may be prejudging the final outcome. Nevertheless, as the Minister said, there is a duty, as the Bill is currently constituted, for the Secretary of State to hold a review. Since the review may report before the BBC charter review takes place, can the Minister confirm that no decision will be taken until after the licence and charter have been decided?

Lord Gardiner of Kimble: My Lords, the BBC charter review is the point at which the Government can consider all aspects of the BBC, including its funding. Indeed, the Government have yet to set out the timing, process and scope of the charter review. The review which would be part of the Deregulation Bill will be part of that process.

Lord Purvis of Tweed (LD): My Lords, in the event of a review, will it make sure that the differing procedures for criminal and civil law in Scotland are taken into due consideration? Given that this is an issue for the future, and that the Scottish Government have made rather glib comments in their White Paper on

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independence that they would adopt an identical licensing system for an independent Scotland, what contact have the Scottish Government made with Her Majesty’s Government with regard to the potential set-up costs and ongoing licensing operational costs of a separate system within Scotland in the event of independence?

Lord Gardiner of Kimble: My Lords, the review of the potential impacts and outcomes of decriminalisation must involve all parts of the United Kingdom, especially the devolved nations. As part of the process, it will be appropriate and necessary to consult the devolved Administrations on these matters. Of course, this legislation has not yet come to your Lordships’ House. I am sure there will be many considerations to be had.

Lord Grade of Yarmouth (Con): My Lords, I declare an interest as a former chairman of the BBC. Decriminalisation of non-payment of the licence fee is a very attractive idea. However, if you remove compulsory payment of the licence fee, you inexorably push the BBC into a ratings war and probably into subscription, which would inevitably be the death knell for the great tradition of public service broadcasting in this country. May I seek my noble friend the Minister’s reassurance that the Government will tread exceptionally carefully in examining this issue?

Lord Gardiner of Kimble: My Lords, clearly the tradition of public service broadcasting is very high in this country. As I said earlier, we will be looking at these matters in the review in the interests not only of the licence fee payer but of the BBC. It is interesting that the BBC has already said that it sees the amendment in the other place as an issue that should be discussed in the round. Indeed, the feeling is that this amendment appeared to be in the line of that.

Lord Barnett (Lab): My Lords, I declare an interest as a former vice-chairman of the BBC. I strongly agree with the noble Lord who spoke just now, and with the need for a review—but it depends who is doing it. We have to be very careful that the review does not result in any real harm to the BBC which, in general, does not need any major changes.

Lord Gardiner of Kimble: My Lords, the important thing is that this is going to be a thorough review. It would not be wise of me to prejudge any of the decisions and discussions that will be had. The amendment would mean that the review would start within three months of enactment, and should then take no longer than 12 months. All the points that the noble Lord has raised will be part of that review.

Lord Deben (Con): Yes, but will my noble friend accept that it would be a sad day if the BBC, which has a reputation throughout the world, were undermined by the kind of underhand technical pressures which are put about? We really ought to recognise that, on these Benches, as on the Benches opposite, there is strong support for the independent BBC, funded as it is, and with sufficient funds to go on being an exemplar to the world.

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Lord Gardiner of Kimble: My Lords, the new Clause 20 is about a discussion about whether there should be a civil monetary penalty regime. Without wanting to prejudge, I do not think that it is at all intended as an undermining of public service broadcasting. Clearly, the important thing is that the BBC remains independent; that is a key feature of our national life.

Lord Grocott (Lab): As it seems that there is still no absolute clarity as to the form that the review should take, may I make a suggestion—unauthorised from these Benches—that two critical people to include as part of the review process would be the noble Lords, Lord Grade and Lord Fowler?

Lord Gardiner of Kimble: I shall certainly make sure that the Secretary of State is mindful of my noble friends’ names.

Royal Mail


3.12 pm

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): My Lords, I would like to repeat the Answer to an Urgent Question given in the House of Commons:

“The National Audit Office has today published its report on the Royal Mail sale of shares. The report confirms that we achieved our primary objective of securing a sale of shares, allowing Royal Mail to access the private capital it needs to invest and to thrive. As a result, the taxpayer now faces reduced risk of having to provide financial support to the universal postal service.

It was right that we took a cautious, measured approach to the sale of shares. This approach was taken in light of our primary objective, and reflects the considerable risks we faced due to industrial relations and challenging market conditions.

The price range for the shares was set following a comprehensive programme of engagement with over 500 potential investors. This was benchmarked against valuations of comparable postal companies. I am clear that this was the correct approach to secure a successful transaction.

A more aggressive approach to pricing would have introduced significantly greater risk. The advice that we received in this respect was unambiguous. There was no confidence that a sufficient number of buyers would offer a significantly higher price. A failed transaction and the retention of Royal Mail in public ownership would have been a very poor outcome for the taxpayer, as the NAO report confirms.

Achieving taxpayer value is about securing both short-term and long-term benefits. In the short term we have delivered a successful transaction which raised £2 billion for the Exchequer, enabled over 690,000 members of the public to buy Royal Mail shares, and put in place the largest employee share scheme of any privatisation in nearly 30 years. In the long term, we

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have reduced the ongoing risks to the taxpayer by putting Royal Mail in a position where it can operate commercially and raise its own funds if needed. In doing so, as the NAO confirms, we have achieved our key objectives. The sale of shares in Royal Mail has delivered on our commitment to protect the universal postal service and safeguard vital services for the taxpayer”.

3.14 pm

Lord Young of Norwood Green (Lab): My Lords, those of us who sat through the rather long and tortuous privatisation Bill remember saying to the Government at the time, “Beware of undervaluing Royal Mail, and beware of a quick sale”. I could not help smiling when the Minister said that the advice was unambiguous. It was unambiguously wrong, and most of those investors have sold most of the shares that they bought at a handsome profit. Given that the Government said when Royal Mail was sold off that its share price should be judged in three months’ time, does the Minister share my concern that taxpayers have been short-changed by the Royal Mail fire sale, or does he still believe that this legitimate concern is little more than “froth”? Does the Minister agree, after today’s findings by the National Audit Office, that it could have been possible to get far better value for taxpayers had the Government adopted a different timetable and perhaps not sold as many shares?

3.15 pm

Viscount Younger of Leckie: I do not agree with the sentiments of the noble Lord. Value for money for the taxpayer with Royal Mail is not just about raising money on day one but about removing the risk of the taxpayer having to fund the universal postal service in the future, and creating the conditions for the company to operate successfully and raise its own funds if needed. It is about the Government setting a good price when they sell their remaining stake and minimising the risk of the public having to subsidise the business in future. That is what we have achieved, and what the NAO has acknowledged.

3.16 pm

Lord Haskel (Lab): The coalition Government are not the first to be badly advised by the City, and probably not the last. Will the Government therefore say that they got it wrong and apologise, in exactly the same way that they keep asking the previous Labour Government to apologise for their mistakes?

Viscount Younger of Leckie: My Lords, we have absolutely no apology to make. I take this House back to the conditions in October 2013. With advice from the advisers, who were chosen through a proper process, the price was set according to the likely demand. As I mentioned earlier, at least 500 investors were consulted. It is fair to say that there is no evidence to suppose that if the price range of 260p to 330p had changed—330p being at the upper end of that range—it would have made any difference. Therefore, we feel that we got it right at the time, and do not have any apology to make.

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Lord Stoneham of Droxford (LD): My Lords, one of the sad things about this is that at the last stage of what was otherwise a very successful privatisation it seems to have been undervalued. What lessons have the Government learnt from this? What was the implication for the advisers? Did they take a reduction in the price they charged the Government for this performance, and would the Government use those advisers again?

Viscount Younger of Leckie: The occasion will not arise for those advisers to be used, but I am pretty sure that we would use them again. Again, much work was done with those well chosen advisers. On the fees, which my noble friend raised, the investment banking syndicate fees were split into a success fee of 0.9% and a discretionary bonus of 0.3%. However, I hasten to add that that particular aspect is under review, and no decision has been made on it. There are always lessons to be learnt from these IPOs. I reiterate that this is one of the largest IPOs that has been handled for many years. One of the lessons that we should take on board—again, it is right that we should deal with it in this way—is the question of the book-building process. That is very much the traditional way in which one can build up shares in an IPO. There are other, novel ways of doing it, but we believe that it would have been too risky for such an important IPO to have taken that course.

Lord Donoughue (Lab): My Lords, this is a devastating report for the Government, as it makes it clear that this was pure underpricing. In future privatisations, will the interest of the public taxpayer be a priority, and not just achieving a successful fire sale? Will the Minister also concede that while those City advisers were apparently impressively sharp, the Government, the department, the Ministers and the officials were, in the word used by the chairman of the Public Accounts Committee, clueless?

Viscount Younger of Leckie: First, I do not agree with the first comment that the noble Lord made. He also made reference to a fire sale. I think it was said at the time, in October—I think by me—that this would be the longest fire sale in history, because my noble friend Lord Heseltine had mooted the idea of an IPO of Royal Mail many years ago. Indeed, the Benches opposite will know of the input into this from the noble Lord, Lord Mandelson. The National Audit Office report was not devastating but said that many of the decisions that we took were good; it said that we were right to be cautious and that it would have been wrong to take risks with such an important public asset as Royal Mail, or even to take risks with taxpayers’ money that would have been needed to support the company in continued public ownership. Had we adopted a more aggressive approach to pricing, there was a real risk that the deal would have failed. As the NAO says, the Royal Mail under public ownership would be worth much less than the sale proceeds.

Lord Dykes (LD): I declare an interest as a small shareholder and ask for the Government’s view on the need to restore some of the quality of the longer-term institutional shareholders. In view of what has happened

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in the short-term transactions, would the Government consider the merits of holding on to their 30% stake longer than originally intended?

Viscount Younger of Leckie: In terms of holding on to stakes, it is good to note that at least 50% of the original institutional investors have retained their investment, which shows an element of consistency. I point out again that nearly 700,000 retail investors took up the offer and employees took up 10% of the offer. To that extent, it has been a success.

Lord Lea of Crondall (Lab): My Lords, I have the Hansard for May 2011, when many of us were on to this very point right through the Bill, as my noble friend on the Front Bench said. Could the Minister comment on the validity of the following point? Having moved an amendment to say that any initial public offering—which was initially denied by the Minister as being at all feasible—should be phased, I said that,

“if the Bill reaches the statute book in its present form, in a year or so we will almost certainly have a repeat of the public interest being prejudiced by the modalities of the sale by merchant banks, as has happened some times before”.—[

Official Report

, 4/5/11; col. 463.]

Is the mistake made by Mr Vince Cable simply that he had a gentleman’s agreement, according to the report, with people in the merchant banks in the City, yet he was not making it with gentlemen? They have put £3 billion into their own pockets. Is that not the most scandalous announcement that we have heard from the Government in all their life?

Viscount Younger of Leckie: I think that the gist of the noble Lord’s question referred to the timing of the sale. I remind him that there was industrial action hanging over this IPO, and much discussion was had over whether one should delay or stay. However, it was very clear that one should continue because the industrial strife was not necessarily going to be resolved and that was not going to impact on the timing. That is why we went ahead at that time.

Lord Foulkes of Cumnock (Lab): I am quite astonished by the Minister’s complacency on this. The taxpayer has lost £750 million because of the incompetence of the Government. As my noble friend said, they were warned about it, not just in this House but by Chuka Umunna, Ian Murray and our spokesman in the other place. Is not it about time that the Government apologised for making the taxpayer lose £750 million? If they do not apologise for that, what will they apologise for?

Viscount Younger of Leckie: My Lords, I say again that there is no apology to make. The process was robust in setting a price at the level at which it was set. I say again that there was no evidence of demand for the shares above 330p. Much work went into it and it was the right decision at the time. It is all very well for the noble Lord to say this with hindsight, but that is what it was at the time.

Baroness Symons of Vernham Dean (Lab): My Lords, surely, the point is that this is not being said with hindsight because these points were made at the time of the sale. I am bound to say that, listening to the Minister, for whom I have a great deal of respect,

1 Apr 2014 : Column 851

I agree with my noble friend Lord Foulkes: I am astonished by the complacency of the Government’s position. He talks as if there was no criticism in the NAO report, but there is clearly a criticism when the taxpayer has lost out to the extent that it has because the Government relied on the advice of those who stood to gain from giving it.

Viscount Younger of Leckie: I do not say to the noble Baroness that there was no criticism. In fact, my noble friend Lord Stoneham asked me to point out whether lessons should be learnt. I gave my view, which is that there are always lessons to be learnt. Therefore, what the noble Baroness has said is not fair. However, there was very little criticism in the NAO’s report. It was a good report and we are pleased with it. We are also happy with the success of this IPO. We took a cautious view and we were right to be cautious.

Immigration Bill

Immigration BillDelegated Powers and Regulatory Reform Committee

Report (1st Day)

3.25 pm

Relevant documents: 22nd, 23rd and 24th Reports from the Delegated Powers Committee and 6th Report from the Constitution Committee.

Clause 1: Removal of persons unlawfully in the United Kingdom

Amendment 1

Moved by Lord Taylor of Holbeach

1: Clause 1, page 1, leave out lines 11 to 14 and insert—

“(2) Where a person (“P”) is liable to be or has been removed from the United Kingdom under subsection (1), a member of P’s family who meets the following three conditions may also be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer, provided that the Secretary of State or immigration officer has given the family member written notice of the intention to remove him or her.

(2A) The first condition is that the family member is—

(a) P’s partner,

(b) P’s child, or a child living in the same household as P in circumstances where P has care of the child,

(c) in a case where P is a child, P’s parent, or

(d) an adult dependent relative of P.

(2B) The second condition is that—

(a) in a case where the family member has leave to enter or remain in the United Kingdom, that leave was granted on the basis of his or her family life with P;

(b) in a case where the family member does not have leave to enter or remain in the United Kingdom, in the opinion of the Secretary of State or immigration officer the family member—

(i) would not, on making an application for such leave, be granted leave in his or her own right, but

(ii) would be granted leave on the basis of his or her family life with P, if P had leave to enter or remain.

(2C) The third condition is that the family member is neither a British citizen, nor is he or she entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.

1 Apr 2014 : Column 852

(2D) A notice given to a family member under subsection (2) invalidates any leave to enter or remain in the United Kingdom previously given to the family member.”

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, in Committee I gave a commitment to give consideration to amendments tabled by a number of noble Lords and to the recommendations made by the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee regarding the definition of family members and the regulation-making power in Clause 1, and to return to it on Report.

Amendment 1 removes the discretion that was previously set out in the regulation-making power as to whether we notify family members of removal. We previously stated our intention that family members will always be given notice when they are to be removed but, in recognition of the arguments so eloquently made in Committee, we have now placed this firmly in the Bill.

We have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee that it was “inappropriate” to delegate the power to define a family member for the purpose of administrative removal within the regulations. We have therefore defined in Clause 1 those family members who might be removed because of their dependency on the principal.

The first condition of the definition sets out the relationship of the family member to the principal. I am grateful for the point made by my noble friend Lord Avebury during our previous debate on this issue that the definition of family member should be dependent on the principal’s leave to enter or remain, and this is what we have sought to achieve within the second condition. The third condition is that the family member is neither a British citizen nor a person entitled to be in the United Kingdom by virtue of an EU treaty right. As I have previously stated, our aim is to give new clarity to families so that they will know exactly who may be liable to removal.

My noble friend Lady Hamwee noted in Committee that the draft regulations contained a provision that the giving of notice to family members acted to invalidate any leave to enter or remain previously held, and asked why this was not included in the Bill itself. We have taken on board her concern and moved this provision out of the regulations and added it to Clause 1.

In Amendment 2 we have sought to reduce the power to make regulations about the removal of family members to matters such as time periods and the service of notice. Further to the DPRRC’s 24th report, published yesterday, we will make a further amendment at Third Reading to take out the reference to “in particular” from line 27 so that it will be completely clear that the scope of the regulations cannot extend beyond these two provisions. This limits them to procedural matters that should be subject to the negative resolution procedure by virtue of Section 166 of the Immigration and Asylum Act 1999. Amendment 3 simply clarifies the definition of a child in this context as someone under the age of 18.

Other amendments in this group, tabled by the noble Lord, Lord Judd, concern the return of families and children to their country of origin. This Government have transformed the approach to returning families

1 Apr 2014 : Column 853

with children, in line with their commitment to end child detention for immigration purposes. I hope that I will be able to explain any further issues as we debate the amendments in this group. Meanwhile, I beg to move.

3.30 pm

Lord Judd (Lab): My Lords, I know that my noble friend is anxious to speak on the Government’s amendment so I will leave the main argument to him.

In May 2010, the Government did indeed commit to ending the immigration detention of children. There was a widespread, positive response to this change—and there have been some improvements. Fewer children are detained, and when they are it is for shorter periods. This must be recognised. The Government’s amendments would create a legislative basis for some of these improvements, for example by setting a time limit on child detention in law. However, it is very disappointing that the Government’s amendments do not prohibit or even properly limit child detention. They do not state that detention should be a last resort, as is the current policy, or that detention should be for the shortest possible time. I fear that, in practice, it may become normal for children to be detained for the maximum permissible period, where this is administratively convenient. Amendment 8 seeks to address this concern.

Bail for Immigration Detainees, to which I am sure many of us are grateful for its experience and for what it has shared with us in its helpful briefing, produced Fractured Childhoods, a report on the cases of 111 parents who were separated from 200 children by immigration detention. Children lost weight, had nightmares and suffered from insomnia during their parents’ detention. In 2010, BID dealt with a family whose members were separated for removal. The father was detained when reporting and the mother and young children were asked to make their way to the airport to leave the UK with him the following week. The family had previously complied with the Home Office and reported regularly, as required. Following the father’s arrest, the family did not have access to financial support and the mother was unable to buy food for her children, including milk for her baby. The mother did not speak English and her very distressed eldest child had to translate when an immigration officer telephoned the family. Her younger child began waking up in the night, crying hysterically. The mother was not offered any practical or financial assistance to travel across the UK to an airport, with several young children, for an early-morning flight.

New Section 78A(2)(b) under Clause 2 states that,

“a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom”.

This clause envisages that one parent may be split from a two-parent family and forcibly removed from the UK. It also allows that single parents may be removed without children as long as there is a relevant carer remaining with the child.

In many cases, children are likely to be seriously damaged by such separation. In Committee, the noble and learned Lord, Lord Wallace of Tankerness, stated that the separations would occur,

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“in exceptional circumstances … for example, where there is a public protection concern or a risk to national security”.—[

Official Report

, 3/3/14; col. 1125.]

However, the clause does not state that any specific circumstances are needed to justify separation. Amendment 5 would address this concern by providing that families must be separated only where necessary for child protection.

The noble and learned Lord, Lord Wallace, also stated in Committee that families may be split where the presence of one parent,

“was not conducive to the public good”.—[

Official Report

, 3/3/14; col. 1133.]

This appears to refer to cases where parents have committed criminal offences. However, the fact that a parent has committed, for example, a false document offence is surely not of itself a sufficient reason to deport or remove them without their children.

Clauses 2 and 3 define family returns cases and limit the definition of a “relevant parent or carer” to somebody who is,

“living in a household in the United Kingdom with the child”.

The child may be seriously affected if a parent who is not living in their household is removed and, indeed, may need to leave the UK with them. For example, single parents who are in prison or immigration detention are not living in a household with their child. Furthermore, there will be cases where children living in households with other family members—for example, for financial reasons—would be very seriously affected if their parent were removed from the United Kingdom. Amendments 4 and 6 would remove the requirement for parents to be living in a household with their children in order to take part in the family returns process and would safeguard the welfare of children in the sort of situations I have described.

Current Home Office policy states that unaccompanied children should be detained for removal,

“on the day of the planned removal to enable the child to be properly and safely escorted to their flight and/or to their destination”.

However, Clause 5 would allow for unaccompanied children to be detained overnight for removal, potentially multiple times.

A 28-day period is proposed between families exhausting their appeal rights and enforcement. However, Clause 2(4)(a) states that the removal directions may be set in this period. This would prevent families having a meaningful reflection period. Furthermore, we have to take seriously the evidence that that timeframe is too short for families who have been in the UK for years to consider voluntary return.

Before I finish, I should like to put four specific questions to the Minister. First, why does the Bill not clearly state that child detention should be a last resort for the shortest possible time? Secondly, how will children whose parents are in detention or prison be safeguarded, given that Clause 3 defines a relevant parent or carer as,

“living in a household in the United Kingdom with the child”?

Thirdly, is it not possible that families will be separated on removal in any case where a parent has committed a criminal offence? Does this include cases involving non-violent offences, such as possession of false

1 Apr 2014 : Column 855

documents? Fourthly, a 28-day period is proposed between the family exhausting appeal rights and removal. New Section 78A(4)(c) under Clause 2 states that “preparatory action” may be taken in this period. Can the Minister clarify whether this will include detention?

At the outset of our deliberations on Report, perhaps as I put these amendments forward I may be forgiven for saying that we all like to pride ourselves on living in a civilised society. In a civilised society, children and their well-being should at all times be central to our concerns. Indeed, many of our obligations under international conventions and agreements arise from undertakings given by British Governments of both parties. Very often, Governments of both parties were pioneers in the changes and legislation proposed.

Detention can have a serious impact on children, too often irreparably. That can lead to alienation and assist social instability in disturbing ways. It lays people open to manipulation by extremists. That is why, for practical reasons in terms of security not less than anything else, our natural concern for children being at the forefront of all our considerations matters the most. My amendments are intended, transparently, to put our commitment to children in the Bill and put beyond doubt that it will always be the prevailing values and culture that matter most. Legislation of itself achieves nothing but it is there to lay out the values to which we subscribe and to underpin them by the law. That is why it is so important.

Baroness Hamwee (LD): My Lords, I welcome the Government’s amendments here. I commented on the need for these issues to be on the face of the Bill at the previous stage, as my noble friend said. I sought clarity and certainty, and it is right that those points are in the Bill. I have a number of questions, but I will not repeat the questions that the noble Lord, Lord Judd, has asked—I have just crossed through that bit of my notes—although the questions are no less valid for that.

In Committee, the Minister gave assurances that removal would not happen where the dependency between the individual and the family member was broken, for instance when the former dependant—as he called him—was a victim of domestic violence. Could my noble friend confirm that that would be covered by the new subsection (2B)(b)? I would be grateful if he could say anything about how it will operate when the immigration officer or Secretary of State considers how a matter would have been dealt with had it been put to him or her.

New subsection (2A)(b) refers to a child,

“where P has care of the child”.

I had a look to see what the phraseology was in the draft regulations we were sent before Committee—I presume they will not go ahead now. They referred to “parental responsibility”. I warned my noble friend that I would ask these questions and realise this might be a technical one, but I would be grateful if he could explain the distinction between having care of a child and having parental responsibility. This may be in the same area as the question of the noble Lord, Lord Judd, about not being in the same household. It is certainly related to that.

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I want to take advantage of these amendments to say how much I welcome the Government agreeing to pin down provisions for conditions at short-term holding facilities—a matter that my noble friend Lord Avebury raised—and the consultation, which I understand is to be undertaken. However, like other noble Lords, I feel strongly that the 24 hours that is referred to must not become the norm: it is a maximum.

On Amendment 8, in the name of the noble Lord, Lord Judd, how can the term “last resort” be demonstrated practically or legally? Is it a term found in legislation? Certainly, it was used at the Dispatch Box and is in Home Office policy. I warned my noble friend that I was going to ask about that but, since then, I have found the answer. It is used in the United Nations Convention on the Rights of the Child, which is reproduced in Welsh legislation. It is also used in Northern Ireland justice centre rules and—I hope this will appeal to my noble and learned friend who was previously Justice Minister in Scotland—in Scottish primary legislation. I say that in support of the noble Lord, Lord Judd, because I want to pre-empt the criticism that this is not the sort of language one should put in a Bill but is simply descriptive.

3.45 pm

Lord Ramsbotham (CB): I support the amendments in the name of the noble Lord, Lord Judd, and refer to my experience as a member of the advisory panel formed by the Government when they first considered the detention of children, particularly the detention of children who were going to be removed. We advised that it should be handled by a separate returns panel, which has since been established.

During those deliberations, we had several other concerns about a word that the noble Lord used in his address—namely, “safeguarding”. In addition to the safeguarding of children who are involved either in detention or in the removal process, there is a very large problem of unaccompanied minors applying for immigration or asylum who are distributed throughout the United Kingdom in order not to overload the social services immediately adjacent to ports or airports of entry. We felt that there was an urgent need for the handling of children, whenever they appeared in the immigration system, to be looked at particularly from the point of view of safeguarding. I am not aware that that has happened. I urge the Minister to give this his urgent consideration. Many of the things that have been said today arise out of the need to look at the treatment of children overall.

Lord Rosser (Lab): My Lords, we will listen with interest to the Minister’s response to my noble friend Lord Judd’s amendments, which he put across with the decency and humanity we all associate with him. The government amendments make concessions on a number of issues, which we and others, and the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee, have made during the passage of this Bill through both Houses. The Minister has indicated the purpose of the government amendments, one of which seeks to make clear that all family members will be given prior notice of their

1 Apr 2014 : Column 857

liability for removal. Will the Minister confirm the position on the minimum period of prior notice that will be given in that instance?

Clause 1 provides a power for the Secretary of State or an immigration officer to authorise the removal of a person who,

“requires leave to enter or remain in the United Kingdom but does not have it”,

or their family members as well. Subsection (6) provides a power for the Secretary of State to make regulations regarding,

“the removal of family members”.

As we know, the Government’s stance up to now, which continues to be the case, is that the regulations would be made by statutory instrument but that they would be subject to the negative procedure. We remain of the view that the affirmative procedure is justified. We are disappointed that the regulations under what will become Section 10(6) of the Immigration and Asylum Act 1999 will not be subject to the affirmative procedure.

I was going to go on to refer to the comments made by the Delegated Powers and Regulatory Reform Committee in its latest report, which was published yesterday. The report reiterated the committee’s view that the power should be subject to the affirmative procedure. The Minister, probably with a view to seeking to address the concerns expressed by the Delegated Powers and Regulatory Reform Committee, has indicated that the Government will be bringing forward, if I understood him correctly, an amendment at Third Reading. He mentioned that it would address the concern that the committee had over the words “in particular”, which the committee commented on in its report. I assume that the amendment that the Government will put down at Third Reading will seek to address the concern expressed by the committee.

For our part, we want to see what that amendment is before making up our minds about whether we find it acceptable or not. Certainly, our position is that the regulations ought to be subject to the affirmative procedure for the kinds of reasons that were given by the Delegated Powers Committee, but we will see what the Government’s amendment says and whether that addresses the concerns that we too have on that particular issue.

Lord Hylton (CB): My Lords, I welcome the Government’s amendment as far as it goes and what may be coming at Third Reading. The Government’s amendments bear witness to the good intentions of the noble Lord, Lord Taylor, which he has shown in the numerous letters and briefings that he has sent out as this Bill has moved through the House. However, in Clause 5, the Government seem to be kinder and provide greater protection for children newly arriving in this country compared with children who are already here. That is why I welcome Amendments 5 and 8 in the name of the noble Lord, Lord Judd, because they are very clear and give us the certainty that we need. I hope that your Lordships will accept them.

Lord Avebury (LD): My Lords, I hope I will be forgiven for returning to a point that we discussed in Committee, on the basis that the noble Lord, Lord Judd,

1 Apr 2014 : Column 858

has tabled a number of amendments that deal with the position of women and children. My noble friend referred to the undertaking that the Minister gave in Committee concerning the facilities at Heathrow. That is not the subject of a particular amendment, but I am aware of delays that have occurred in implementing the improvements at the short-term holding facilities, particularly at terminal 4, which are the worst in the whole airport.

In view of that fact, will my noble friend take this opportunity to give us an update on where we have got to? None of the facilities has any showers for the children and families who are detained in them. The shortage of accommodation is acute and the facilities have been thoroughly condemned by the independent monitoring board that deals with Heathrow. It would be helpful if the Minister, when he comes to reply, would give us an update on where we have got to on the improvement of those facilities.

Lord Taylor of Holbeach: My Lords, as noble Lords will know, the Bill gives legislative effect to our current policies on family returns by putting key elements of the new process into primary legislation. Noble Lords have spoken of the Government’s record and our policies towards children, and mentioned them in favourable terms. I think it is a shared opinion across this House that we take policies towards children seriously. I hope to demonstrate that we are doing that in the passage of this Bill.

Amendments 4 and 6, in the name of the noble Lord, Lord Judd, would narrow the definition of a family return case. It is important that families where children are being looked after by someone other than the parents, such as an older sibling in some cases, a grandparent or another adult member of their extended family, are included in the family returns process so that their cases can be resolved together and so that they benefit from the intensive support provided by the new process. Under our definition of “family”, a parent must be living with their children to benefit from the family returns process. That is a reasonable definition. Other than in exceptional cases, where common sense would prevail, if a parent is living apart from the child they may be removed separately.

With regards to Amendment 5, and separating children from their parents, I assure noble Lords that we will always seek to ensure that families remain together during their return. I am sympathetic to the amendment, but there are exceptional cases. The noble Lord, Lord Judd, referred, I think, to the comments of my noble and learned friend Lord Wallace of Tankerness in previous debates on the Bill. Splitting families would never be done for tactical reasons to achieve compliance. However, in exceptional circumstances, we may need to remove an adult family member separately, even during the 28-day grace period which Clause 2 will establish. This may be, for example, where there is a public protection concern or a risk to national security.

The noble Lord, Lord Judd, also asked what the criminality threshold is over which we might separate families. He wanted a stronger definition than perhaps my words just now have offered, but there can be no fixed threshold. Each case will be considered on its

1 Apr 2014 : Column 859

merits, based on an assessment of whether an adult poses a threat of offending that cannot be satisfactorily managed without removal. That is the only fair answer that I can give the noble Lord.

Amendment 8 seeks to ensure that children are detained only as a last resort and for the shortest possible time. That is already, as noble Lords will know, government policy. Clause 5 will, in effect, ensure that detention is for the shortest possible time, while reflecting the operational reality that, in very exceptional circumstances, unaccompanied children may need to be held for short periods in transit to a port of departure or at the port awaiting departure. If we do not hold children safely while they are coming in and out of the UK unaccompanied, we increase the risk that they may fall prey to traffickers or, indeed, abscond.

Later this afternoon, we will be considering an amendment concerning children tabled by the noble Earl, Lord Listowel, to which I have added my name. I mention this because it is important to consider our approach to children in the Bill in the round. That amendment will confirm that the important statutory duty towards children in immigration decisions applies to every matter in the Bill. It will of course apply to this part of the Bill, further underlining that when families and children are being returned, we must have regard to those children’s best interests.

I will address the questions posed by my noble friend Lady Hamwee, whose help on this matter and on the Bill in general has been very positive.

Lord Judd: I am very grateful to the Minister for what he is saying and the way he is saying it. Will he re-emphasise his position on two points? First, is there an understanding within the Government that sometimes the emotional relationship between children and someone who may be in prison can be very strong indeed, and that that needs to be taken fully into account when dealing with the interests of the child? Secondly, will he confirm that he agrees with me—if I may put it that way—that what will always matter most is the ethos, the spirit and the way in which the policy is being operated by everyone in the operation, and that sometimes therefore it is terribly important to have clearly in the legislation the overriding objective, purpose and value so that these cannot be lost in the niceties and legalities of the various parts of the legislation? That is why some of us argue for a firm, clear statement in the Bill.

4 pm

Lord Taylor of Holbeach: My Lords, I would like to think that by our signing up to the amendment in the name of the noble Earl, Lord Listowel, there is a clear expression of those objectives across the Bill as a whole, not just in one section. If the noble Lord doubts our commitment in this regard, he should look at the number of children now held in detention compared with in the past. That has been supported by all noble Lords. It is not something that the Government have done on their own; it has been done because this House and others who care for children and families have been prepared to act in the interests

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of children and families. Nobody has done more so than the noble Lord. I hope that I have reassured the noble Lord with my statements, and I hope that the Government have reassured noble Lords by their deeds in this regard.

I was asked a number of questions by my noble friend. I do not want to take too long on the issue. My noble friend asked whether removal would not happen where dependency was broken when the former dependant was a victim of domestic violence, and asked me to confirm that proposed new subsection (2B)(b) covers this. I can give that assurance. Removal as a family member will not happen where the dependency is broken, because this scenario would not be covered by proposed new subsection (2B)(b). If there is a breakdown in a relationship such that a partnership no longer exists, the former dependant falls outside the definition in proposed new subsection (2A) and would be dealt with separately. I hope that that helps. I can give a fuller answer to my noble friend in correspondence, if she wishes.

My noble friend asked whether there was anything I could say about how proposed new subsection (2B)(b) will operate, and what the procedure is. In making a decision on whether to serve notice of removal on a family member, having already established the family relationship, an immigration officer or a case worker acting on behalf of the Secretary of State would next have to check whether the family members had leave on the basis of a family life with P. In cases where a family member has no leave, either because they never had any or because previous leave has expired, the immigration officer or case worker would look at whether they would be able to be granted leave in their own right because of their immigration status as an illegal entrant or overstayer, but they might be granted leave on the basis of their family life with P if P otherwise had leave.

My noble friend also asked how,

“where P has care of the child”,

differed from “parental responsibility”? I think that lies in the fact that we were talking about draft regulations when we were discussing the early draft. That is not necessarily the final wording. The wording prepared by parliamentary draftsmen is designed to include where children are being looked after by someone other than a parent, such as an older sibling, a grandparent or another adult family member. I think that my noble friend kindly answered her own question about “last resort”, so I shall not go into that.

In answer to the noble Lord, Lord Rosser, I can confirm that family members will be given a minimum of 72 hours between receiving notice of removal and any enforced removal, as per current requirements as endorsed by the courts.

My noble friend Lord Avebury has asked me before about the facilities at Heathrow. Unfortunately, the plans for those have been delayed. He is quite right to draw attention to that. I responded to him in those terms. I remain committed to providing him and the House with information on that issue when those facilities are finalised, but at the moment, that is not the case, so I cannot advance our knowledge on that issue any further.

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I think that I have covered most of the questions, although I worry that I may not have addressed the issue raised by the noble Lord, Lord Hylton. I promise to read the record and come back to him on that.

I am entirely sympathetic to the intention behind the amendments proposed by the noble Lord, Lord Judd. I hope that I have been able to show how what he seeks to achieve is expressed in the Bill, so I hope that he will be prepared not to move his amendments and, meanwhile, I beg to move mine.

Amendment 1 agreed.

Amendments 2 and 3

Moved by Lord Taylor of Holbeach

2: Clause 1, page 2, leave out lines 28 to 35 and insert—

“( ) the time period during which a family member may be removed under subsection (2);

( ) the service of a notice under subsection (2).”

3: Clause 1, page 2, line 35, at end insert—

“( ) In this section “child” means a person who is under the age of 18.”

Amendments 2 and 3 agreed.

Clause 2: Restriction on removal of children and their parents etc

Amendments 4 and 5 not moved.

Clause 3: Independent Family Returns Panel

Amendment 6 not moved.

Schedule 1: Enforcement powers

Amendment 7

Moved by Lord Ramsbotham

7: Schedule 1, page 60, line 13, leave out paragraph 5

Lord Ramsbotham: My Lords, in returning to the amendment, I shall concentrate on developments since it was debated in Committee. In his letter of 10 March to the noble Baroness, Lady Smith of Basildon, the Minister wrote that the reasonable force measure in Schedule 1 relates solely to immigration officers, and existing safeguards mean that force may be used only by officers who are fully trained and accredited to do so. He also wrote that all contractors were required to comply with current legislation, rules and guidance and that:

“Home Office monitoring teams ensure that there are robust systems in place for monitoring escort and detention providers, to ensure service delivery and accountability”.

When I was Chief Inspector of Prisons, I used to warn Home Secretaries and prison Ministers that there was a world of difference between the facts that I was giving them, based on what had been seen during inspections, and the fudge that was too often given to them by officials based on what it was alleged that

1 Apr 2014 : Column 862

they wanted to hear. Real improvement can be made only if it is based on fact, and I believe that one of the main reasons for so little consistent or significant improvement in the conduct of imprisonment is that too many Ministers have preferred fudge to fact. My successor had a more eloquent way of putting that, calling the prisons described by officials to Ministers “virtual”.

Having studied the enforced removals process for a number of years, I have to say to the Minister that there is more virtual than fact in what was drafted for him to write and that until and unless the whole enforced removal process is taken by the scruff of the neck, re-examined and revamped, it will continue to cause avoidable ministerial embarrassment and bring shame on the good name of this country.

Before I raised the amendment in Committee, I wrote to the Minister drawing his attention to the report of the National Independent Commission into Enforced Removals that I chaired in 2012, following the death of Jimmy Mubenga while under restraint from three G4S detainee custody officers in an aircraft at Heathrow. Noble Lords will no doubt have noted that, since Committee, the Crown Prosecution Service has brought charges of manslaughter against these three, following a verdict of unlawful killing by the inquest jury. In view of what we learnt during the commission, I have to admit that I found the Crown Prosecution Service’s earlier refusal to prefer charges perverse. However, now that the CPS has done its U-turn, I hope that the questions which this tragic affair asks of the current enforced removals process will at last persuade Ministers that it is in need of urgent attention.

To assist with this, I also sent the Minister a copy of a draft code of practice that I and my fellow commissioners had drawn up. I suggested that the draft code might be considered with advantage by Home Office officials outside the timetable of the Bill, and said that I and my colleagues would be only too delighted to assist with that consideration. The failings described in our report were not new and had been drawn to the attention of the Home Office a number of times by many people over the years. Furthermore, the coroner who conducted the inquest into the 16 year- old Gareth Myatt, who died in Rainsbrook secure training centre in 2004 at the hands of G4S employees, had ordered the Home Office to publicise the dangers inherent in the restraint technique that subsequently was used, again by G4S employees, on Jimmy Mubenga. I must ask the Minister: was its use ever monitored by a Home Office team?

In setting about such a revamp, the Home Office has a priceless asset in the current Independent Chief Inspector of Borders and Immigration, who keeps on turning up examples of bad practice that have gone unchecked for years. Only last Thursday, he published a damning report on his inspection of the emergency travel-document process highlighting, inter alia, that the quality assurance process set up by the Home Office was not standardised, nor did it have an audit trail. He also reported that 78% of the cases of those in contact with the Home Office were not actually being worked on and that 11% of the inspectorate’s

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chosen sample had been granted some form of residency or leave to remain and so should not even have been in the removal pool. He also drew attention to something that I have often raised in this House, namely the detention of too many foreign national offenders in immigration detention centres for long periods after they have completed their prison sentences—the average time being 523 avoidably expensive days. Not least to save money, documentation should be completed during their imprisonment so that they can be deported the moment that that imprisonment ends.

There are two reasons why I am raising this amendment again. First, I thank the Minister for meeting me, along with the noble Earl, Lord Attlee, and officials, to discuss the draft code of practice, and for a subsequent meeting last week that was also attended by the Immigration Minister, James Brokenshire MP. I also commend the Minister for the assiduous way in which he has set about educating himself on the issues involved, not only by visiting Harmondsworth but by accompanying a return flight, during which he saw at first hand the demands made on detainee custody officers in what is never an easy exercise, and the problems caused by failure to pass on legal judgments. I am sorry, but I simply do not believe that courts make these judgments at 3 am, and the upheaval of taking a returnee and his luggage off a flight confirm that both the bureaucratic and removal parts of the process need attention.

My second reason for moving the amendment is to ensure that what I and my commission have offered, as well as the Minister’s response to our proposal that a code of practice be drawn up and adopted, is recorded in Hansard so that both can be followed up. I know that the Home Office has appointed a commission to examine and authorise restraint techniques, though I regret that it continued the Home Office practice of calling on inappropriate Prison Service advice because restraint techniques are not used by detainee custody officers in custodial settings. It is almost a year since I and some of my fellow commissioners gave evidence to it, and I look forward to hearing when it will report. The Minister has also been kind enough to offer me the opportunity of visiting the new training arrangements that I understand are now being developed, which I look forward to doing.

I therefore ask him to consider redrafting paragraph 5 of Schedule 1, because the force used currently by immigration officers is neither clearly defined nor reasonable. I beg to move.

4.15 pm

Baroness Hamwee: My Lords, the noble Lord has spoken very powerfully about this issue, today and previously. I hope that he will understand the spirit in which I make this point; I make it only in case we find that this is more than a probing amendment. Will he confirm that his amendment to take out this paragraph would still leave the reasonable force—or, as he might say, so-called reasonable force—provision in the immigration legislation because of the way in which the paragraph is worded, which essentially updates the references to the immigration Acts? As I say, I ask that very gently only in case we find that we are faced with a little more than his questions.

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Lord Ramsbotham: I am very grateful to the noble Baroness. We have “reasonable force” at the moment, but I am concerned that if we left it like that then we would have reasonable force that was unreasonable. I am therefore asking that the work should be done, consideration should be given to this and, if necessary, that it be mentioned in the wording that the reasonableness refers to what has been authorised as being reasonable within the Home Office.

Lord Rosser: My Lords, the noble Lord, Lord Ramsbotham, has spoken with his considerable knowledge of the enforced removal process and of restraint techniques. It is fair to say that his criticism is not confined to what he thinks is going on at the moment but extends to what has gone on under previous Governments as well. I do not think that his comments are geared to a particular Government; I think that they are geared to what has been happening over a period of years.

We are aware of what the noble Lord has proposed about a code of practice, and I have to say that there seem to us to be some fairly strong arguments for seeking to have such a code, in view of some of the terrible difficulties and events that there have been and to which the noble Lord has referred. He has referred today to the redrafting of paragraph 5, as I understand it from the closing words of his speech.

We on these Benches have sympathy with the arguments that he is putting forward, which are clearly addressed to trying to resolve the significant difficulties that have arisen, and may well continue to arise, with the current process and techniques. We very much hope that we will hear a helpful response from the Minister to the quite powerful points that the noble Lord has just made.

Lord Taylor of Holbeach: My Lords, I do not think that there is going to be any marked division in this House on this issue, to the extent that I think we are agreed that whatever is done in our name should be done in a civilised and proper fashion. I am grateful to the noble Lord for bringing this issue to the House’s attention through Amendment 7, but perhaps I might start by repeating what I previously said in Committee. The provision in Schedule 1 to extend the use of force affects only those powers exercised by immigration officers. It does not make any change to the separate statutory powers of detainee custody officers and escorts, who are private contractors, to use reasonable force in the exercise of their particular functions.

As the noble Lord kindly mentioned, last week the Minister for Immigration and Security, my honourable friend James Brokenshire, and I had a very helpful and thoughtful meeting with the noble Lord where we discussed the proposals in his draft codes of practice for enforced removals and where I believe we agreed that there are a number of areas of common ground where the Home Office is making improvements. I think the noble Lord will know that my honourable friend Mr Brokenshire and I share an interest in this matter. He kindly mentioned my trip on a removals flight, which I found extremely interesting. I feel much better informed through having made that journey.

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The noble Lord has proposed in the draft code of practice on use of restraint that any use of force must be justifiable, proportionate, accountable, necessary, safe and supportive and must be applied for only the minimum period necessary to achieve the lawful objective. Published enforcement instructions and guidance explain that the use of force must be proportionate, lawful and necessary in the particular circumstances, and also set out that force should be used for the shortest possible period, be the minimum needed, be used only when all other avenues of securing co-operation have been exhausted and should be de-escalated as soon as possible. Whether that use of force was reasonable must be justified by individual officers on a case-by-case basis. I can assure noble Lords that only those immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards.

If we were to accept this amendment, although it would maintain the status quo, there are half a dozen coercive powers which sit in the 2004 and 2007 immigration Acts, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied in these arrest and entry powers, it is our intention that this should be set out explicitly in statute to ensure that there is greater transparency. I previously gave noble Lords the example of an immigration officer trying to safely arrest a person for the specific offence of assaulting him or her, under Section 23 of the UK Borders Act 2007, where it is not expressly stated in the legislation that an immigration officer can use reasonable force to restrain that person in doing so. The extension of the power for immigration officers to use reasonable force beyond that contained in the 1971 and 1999 immigration Acts will ensure that existing powers can be operated effectively and are in step with other law enforcement bodies’ powers and that current enforcement practices are not at risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute.

The noble Lord asked whether the Home Office monitored the restraint techniques used at Colnbrook removal centre in 2004, which led to the tragic death of a 16 year-old. I cannot answer that question at the Dispatch Box but will write to him and copy the letter to other noble Lords who have spoken in this debate.

With the assurance that we in the Home Office very much value the noble Lord’s input in this area, which reinforces our interest in making sure that these jobs are done in a proper fashion, I hope the noble Lord, Lord Ramsbotham, will fell able to withdraw his amendment.

Lord Ramsbotham: My Lords, I am extremely grateful to the Minister for his considered reply and, indeed, for the meetings we have had. I admit that I was seeking an opportunity to raise this issue because it has gone on for too long. The procedures being exercised in our name have gone unchecked and unsupervised in a way that has allowed bad procedures to be passed

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from one contracted company to another contracted company over the years, which really ought to have been checked.

I like to think that the exercise that the Minister has outlined means that this will at last be put to an end. The people who have actually been served worst by this are Ministers, who have been put into embarrassing positions which they really should not have been. I am happy to withdraw the amendment because I think that the point has been made fully, and I am grateful to the Minister for doing so. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clause 5: Restrictions on detention of unaccompanied children

Amendment 8 not moved.

Clause 7: Immigration bail: repeat applications and effect of removal directions

Amendment 9

Moved by Baroness Williams of Crosby

9: Clause 7, page 6, line 45, at end insert—

“(1A) In paragraph 16 (detention of persons liable to examination or removal) after sub-paragraph (4) insert—

“(5) A person detained under this paragraph must be released on bail in accordance with paragraph 22 no later than the sixtieth day following that on which the person was detained.””

Baroness Williams of Crosby (LD): My Lords, in moving Amendment 9, it is an honour to follow the noble Lord, Lord Ramsbotham, who I think always gives this House the benefit of an extraordinarily frank, honest and honourable speech, to which we can all listen with great advantage to ourselves. I share with him his courteous recommendation of, and congratulations to, the noble Lord, Lord Taylor, and the noble Earl, Lord Attlee, because of their extraordinary willingness to discuss with us the issues that we raise. I will certainly echo that before I embark on speaking to my amendment.

I declare an interest as a patron of the Gatwick Detainees Welfare Group, which commits itself to looking after those detained at that airport, by getting together a group of volunteers who make it their business to try to inform, calm and, for that matter, communicate with the large number of men and women there. I put on the record my extreme gratitude to them. They do it without being paid, they come from the local area and they are a fine example of the United Kingdom at its civic best.

The noble Lord, Lord Taylor, is an exemplification of that famous proverb, “A gentle answer turns away wrath”. Indeed, when I hear the noble Lord, Lord Taylor, my wrath diminishes as I listen. However, I also have the unhappy, almost aching, feeling that there is quite a big gap between what the noble Lord says—undoubtedly with all sincerity—and what I actually

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encounter in the real world. While I was listening to the noble Lord, Lord Ramsbotham, there was a certain gap between the assurances given by the Minister—I am sure in all good faith—and the daily set of newspaper stories, over and over again, about the particular treatment of detainees, not least of course by well known private companies now responsible for running detention centres. It does not all quite add up.

I shall therefore restrict my remarks today to a factual account, as far as I possibly can—not eloquence, not rhetoric, but a factual account—of why I think that the present situation cannot be sustained. First, on the numbers, some 30,000 people are detained every year as a result of extant investigations, connected in some cases with faulty immigration rules, in some cases with documents and in some cases with what all of us would of course recognise as criminal offences: 30,000. If you then ask how many have been detained for a year or more, the answer is reassuring: as of the autumn of 2013, it is 92. However, what you do not know until you investigate very carefully is that there are another 950 who are also detained, not in detention centres but in prisons. For some reason I do not understand, people detained in prisons for a year or more are not listed in the Home Office’s own statistics. I am told that there is an anomaly; it reports only those detained in detention centres. The 982 figure is very different from 95, and that difference has not been explored.

4.30 pm

Thirdly, let us ask how much that costs the British taxpayer. The answer is that the cost of a year’s detention for each detained person is £36,000. However, that is only the beginning. At present there is a plan to build, at The Verne in the Isle of Wight, a new detention centre that will cost an estimated £30 million. That is also a cost over and above the cost of running the detention estate. We are therefore looking, on some estimates, at a figure of somewhere between £75 million and £100 million a year for a detention centre about which we must at least ask whether it is necessary, essential and justified.

That leads one to turn to the issue of how other European countries treat their detainees. With the Republic of Ireland, we are the only European Union member state that has detention with unlimited length. In France, the length of detention is 45 days, and in Germany it is three months. Those are broadly in line with the average for all other European member states. I repeat: only the UK and the Republic of Ireland have unlimited detention without trial. I find that deeply troubling.

Many years ago, when I was a young mum, I went on holiday with my family to Romania, which was still under the undoubtedly iron hand of Nicolae Ceausescu. I spoke to the hotel clerk, and I will never forget what he said when I handed over my British passport to him, which was, “Ah, mater liberorum”—mother of the free. I have never forgotten that. He had been exiled to the Romanian mountains by his Government and was forbidden to speak out or to get newspapers, but somewhere inside him was the sense of the beacon quality of our own country. I never forgot that. That is

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why today, when we debate something such as the unlimited detention of detainees, I have to ask myself whether the country that I love for its belief in freedom is still the same country.

I will go back to the facts again. I have talked about the detention estate, but I will take it one step further. In 2010, to its credit, the European Parliament approved a “return directive”. Under its provisions, any person detained without trial had to be returned after a length of time no greater than six months. If investigations were needed—for example, because somebody might be accused of some sort of criminal offence—there was an extension under the EU directive to 18 months in all. The total maximum, therefore, even if the allowance of extra time is granted, is 18 months—and normally it is six months. The United Kingdom and the Republic of Ireland both opted out of that directive on the grounds that it interfered with our autonomy and freedom to run our own justice system. Would that we had opted out on rather different grounds—but we opted out, so the directive does not apply to the United Kingdom.

What else can we say about what we might do? Through the Gatwick detention centre—and I am sure that this is also true of other Members of this House—I have encountered, over and over again, the tragic situation of many of those detained. I will give the House two examples. The first is the example of people who cannot be returned, such as all Somalis who fled to this country from the destruction of their own, because the United Nations High Commissioner for Refugees announced that to return them would be utterly unsafe. To our credit, we abide by that ruling and we do not forcibly return Somalis to what would almost certainly be a future of torture, if not death.

We have been much more sceptical about some other countries. I was closely associated with the attempt to support the famous MDC, the Movement for Democratic Change, in Zimbabwe—only to see, over my desperate protests, two people, including the youth officer of the MDC, returned to Zimbabwe on the grounds that they would be safe when they got there. They were both tortured to death in the airport within a few hours of being returned by us, the United Kingdom. As the noble Lord rightly said, that was under a different Government, but the arguments are the same regardless of party. So we cannot return some people; what we do is detain them—unlike the French who, if people cannot be returned, give them no more than 45 days in detention.

The second large group—and some of them will be familiar to noble Lords—are people who cannot be returned because they have no proper documentation and will therefore be rejected by the country to which they are returned. That undoubtedly presents the Home Office with considerable problems; I understand that. But the alternative to detention without limit in every other country in Europe, save the Republic of Ireland, is to investigate and review the case and decide whether people can be released and, if they cannot be released, to bring charges against them. Indeed, the striking fact about France—I take that as the closest example to us—is that more people have been voluntarily returned from France as a proportion of those detained than in

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the United Kingdom, by a very substantial margin. France has persuaded 81% of its detainees to return voluntarily—not at the end of a cosh, but voluntarily—to the countries from which they came, which in turn have been sussed out to make sure that they will not do damage to the returned deportees. What France does, we can do; there is no reason that we should not.

To conclude, we pay something of the order of £70 million or £80 million a year to sustain a system that is uncivilised, brutal, expensive and unfair. I plead with the House to consider very seriously whether we can go on supporting it and whether the time has not come for major reform of what I can describe only as a deplorable policy common to all parties in this House and to all of us, which we allow to continue year after year, even in the teeth of the United Nations Committee Against Torture, which specifically begs the United Kingdom to look very closely at what it has done and consider whether a limit should not now be brought in.

Lord Lloyd of Berwick (CB): My Lords, I support the amendment for all the reasons given by the noble Baroness, Lady Williams, in her most eloquent speech. She has left it to me to say something about the law in this area—a somewhat duller subject, I fear. The basic legal principle involved is not in doubt. Executive detention in immigration cases is lawful if—but only if—there is a realistic prospect of removal within a reasonable time. That is the principle that was established in the case called Hardial Singh. If that principle does not apply, it is otherwise unlawful.

It may be supposed that the purpose of the amendment is to make indefinite detention unlawful—but it is not, because it already is unlawful. The purpose is quite different; it is to impose a statutory limit on lawful detention, which in this case is proposed at 60 days. The application of the general principle to which I referred is, of course, dependent on the facts of every particular case that comes before a judge. There was a time when it looked as though judges, left to themselves and applying that general principle, would reach a consensus on what should be the maximum period of lawful detention in ordinary cases. If they had, a statutory limit of 60 days would not be required.

Sadly, the most recent cases have shown that that is not going to be the way ahead. I refer to just two. In the Muqtaar case, decided in October 2012, the Court of Appeal dealt with a Somali ex-offender who could not be returned to Somalia. He was nevertheless held for three years and five months before being released. His claim for damages failed. It was held that there could be what was described as a realistic prospect of removal without it being possible to specify the period within which removal would reasonably be expected to occur. I find that pretty difficult to follow, but on any view it seems to deprive the principle to which I have referred of any real effect.

Another case was Francis, decided in July 2013. The claimant in that case was convicted of using a false British passport. He was recommended for deportation and was then detained for three years and nine months. At the hearing, the Secretary of State argued that the court’s recommendation created what was called a “statutory warrant for detention”.

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The judge accepted that argument—otherwise, he said, he would have awarded substantial damages. I am not sure what the Secretary of State’s argument really meant but, happily, that case is going to the Court of Appeal and I hope that we will know what the position is.

I cite these cases because they have led me, with great reluctance, to the view that we cannot now look to the judges alone to arrive at a maximum period of detention in immigration cases. It is for that reason that I support a statutory maximum, as proposed in this amendment, for I am in no doubt at all that a maximum is required. No doubt some would like a maximum longer than 60 days and others a maximum shorter than 60 days. However, the existence of a statutory maximum is in my view essential to prevent detention in these immigration cases becoming in practice indefinite—or, at any rate, seeming to be indefinite—with all the suffering and misery that that involves.

The arguments in favour of a statutory maximum are set out in the report of the Bingham Centre for the Rule of Law in its safeguarding principle 17 at pages 82 to 87, and in the very excellent briefing provided by Detention Action. The arguments advanced there seem to me completely convincing and it would serve no purpose to repeat or summarise them. Therefore, I will add just two footnotes. Last week, as it happens, we debated a different form of indefinite detention—indeterminate sentences for the protection of the public, or IPPs. They were abolished by Parliament in 2012 because the consequences of the IPP system were so unjust. In the case of IPP, the detainees had all, of course, been convicted of a serious offence and were deemed to be dangerous. One may therefore ask how much more unjust is this detention in the case of would-be immigrants who have committed no offence at all?

Secondly, I have spent many hours wearying the House on the injustice of control orders, as your Lordships will remember. We were always told, in those days, that there was no alternative to control orders for these dangerous men who could not be convicted in the ordinary way. I was therefore very pleased when control orders came to an end and TPIMs were substituted, in particular because Parliament imposed a statutory limit of two years. Last week, the last of the TPIMs lapsed and, so far as I know, there was no immediate protest from the Home Secretary. That leads me to think that control orders and TPIMs were never really as necessary as people said and that, somehow or other, the Home Office has found another way around. I suggest that exactly the same will happen if we impose a statutory limit of 60 days on this form of detention. If necessary, the Home Office will always find some other way of dealing with the problem. For that reason, I shall vote for this amendment and hope that the House will do so, too.

4.45 pm

Lord Roberts of Llandudno (LD): My Lords, it is a privilege to follow my noble friend Lady Williams and the noble and learned Lord, Lord Lloyd, on a cause that is so right. Even those who try to defend the

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present system of indefinite detention must surely be uneasy of conscience that we are even contemplating such an approach.

In 1999, the United Nations Working Group on Arbitrary Detention stated:

“Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”.

Indefinite detention is the worst type of punishment. Theologically, it is similar to the hell we were told about in the old days: it is not going to end. Waiting for removal or deportation, not knowing when it might happen or what a person’s fate might be, is unlimited hopelessness.

Some figures have already been mentioned. At the close of last year, in addition to the 220 people who had been in detention for six months or more, 11 had been detained for 24 to 36 months and one person had been in indefinite detention for between 36 and 48 months. Who is in detention? Many have no travel documents, while others are unreturnable because of conditions in their country of origin or because their nationality is disputed. The United Kingdom is the European Union’s biggest detainer of migrants. As already mentioned, a record 28,909 migrants were detained in 2012, most of whom are guilty of no crime and many of whom are being detained in conditions equivalent to high-security prisons.

We have heard about the Bingham Centre, the United Nations guidelines and the European Union directive, yet we are the country that refuses to do this. We have no moral right to put anyone through such prolonged punishment. I agree with the Chief Inspector of Borders and Immigration, John Vine, who said:

“Given that a criterion for maintaining detention is that there must be a realistic prospect of removal within a reasonable timescale”,

indefinite detention is, “a serious concern”. It is also totally unacceptable and completely inhumane. We are the only country in Europe, apart from the Republic of Ireland, and one of the few countries in the world not to operate a maximum timeframe for immigration detention. How can we point the finger at other countries for breaches of human rights law? Years ago, the United Kingdom was called the sick man of Europe. I hate to think that it could be termed that again. However, on the particular ground of indefinite detention, surely other countries and other people have a right to point the finger at us. The whole spirit of Magna Carta is rejected by this policy, but in this Bill we can remove the stain, especially before the celebration of Magna Carta next year. What better way to celebrate it than to end indefinite detention? That would be the real celebration.

Let us not forget the cost. Independent research by Matrix Evidence concludes, as my noble friend Lady Williams mentioned, that £75 million per year could be saved if asylum seekers who cannot be deported were released in a timely manner. Therefore, I urge the House to join me in expressing abhorrence of the terrible sentence of indefinite detention for people

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who have committed no crime whatever, and to resolve to put an end to it once and for all in the United Kingdom.

Lord Judd: My Lords, I do not think that support for this amendment should be limited to beyond my own Benches. I feel very strongly in favour of it and I congratulate those involved in drawing it up. I care passionately about the issues and values behind it but I want to make one other point, which I made in Committee. We are involved across the world in a struggle for values, and we like to hold to the principle that we offer values that present a better prospect for humanity. We try to contain extremism.

During my life I have come to recognise that those who advocate extremism do best in a climate of ambivalence—when there is doubt and cynicism on a significant scale. People who individually might never embrace extreme action nevertheless have a shadow of doubt: however distasteful they find the methods that the extremists use, perhaps these people are on their side. This may be a very dangerous thing to say but I sometimes wonder whether it is a bit too easy to refer to people as extremists. People who take that kind of position point to hypocrisy and inconsistencies and to examples where those whom they want to undermine do not, through their practice, begin to uphold what they advocate.

Therefore, I am totally concerned not only with the humanity and the principle behind the amendment but with its relationship to the struggle for security and stability in the world. We simply cannot afford to let areas of our administration and our justice system be a living example of contradiction of all that we have traditionally held dearest in our society. From that standpoint, as well as the one of values, I believe that it is a timely amendment and that it deserves support.

Lord Ramsbotham: My Lords, I have added my name to the amendment because I absolutely agree with everything that has been said about unlimited detention, which is hinted at. First, I salute the noble Baroness, Lady Williams of Crosby, for the powerful and eloquent way in which she moved the amendment, and I salute the power with which my noble and learned friend Lord Lloyd of Berwick and the noble Lords, Lord Roberts and Lord Judd, have supported it.

I have three things to add. Recently, I have been privileged to be a member of a Select Committee of the House on soft power, chaired most admirably by the noble Lord, Lord Howell. One of the most powerful witness statements I remember listening to was by the high commissioner for Mozambique, who described the qualities that encouraged Mozambique to apply to join the Commonwealth. In particular, it was the qualities of Britishness, headed by the rule of law. The fact that that made so much of an impression on him and is why Mozambique made such a change suggests that we go against our reputation for the rule of law at our peril when we are trying desperately to think about how we project our image in the emerging world of the 21st century.

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I used to inspect detention centres and they always worried me. They were bleak places, not designed for holding people for long periods. They were originally designed for only very short periods while documentation was checked. They are neither one thing nor the other. There is nothing to occupy people, and of course that is not good over time. Nor are they good at short-term holding, which is why we wait to hear what will happen about the short-term holding facilities so urgently required. The other thing about them is their staff. The trouble with the staff in such places is that they tend to turn over extremely quickly. They cannot communicate with the people there, and they cannot provide anything other than the normal meals and so on. They can provide none of the succour. Remember that the people there have come under some form of mental turmoil. The other thing that always worried me about detention centres is the absence of the proper medical treatment—in particular, mental health treatment—that so many of the people in them require, especially under the strain and stress of being held for an uncertain period while their circumstances are investigated.

Thirdly, at Second Reading a number of noble Lords drew attention to the millstone of the 500,000 unresolved cases with which the Home Office is currently faced. They said that until and unless that backlog is removed, you will never have a system where it is possible to process things and people quickly. That requires urgent remedial action. I should like to make certain that, in future, the stimulus of having to complete cases within a period of time is applied to the system so that we are never able to build up such a backlog again. That is bad not only for the system and the people concerned but also for the staff, who in no way can help people by giving them some indication of when and how they might be released from what they are doing.

Baroness Lister of Burtersett (Lab): My Lords, I speak very briefly in support of this amendment so that my noble friend Lord Judd is not on his own on these Benches in supporting it. The noble Lord, Lord Roberts, likened detention to hell, but it is probably more like purgatory because people are in limbo. The noble Lord, Lord Ramsbotham, referred to the mental health problems faced by people. Is it surprising that there are very serious mental health problems when people do not know how long they will be there? Just from common decency and humanity, I hope we will be able to support this amendment.

Lord Bourne of Aberystwyth (Con): My Lords, nobody could be against the spirit in which this amendment was moved so persuasively and reasonably by my noble friend Lady Williams of Crosby, but I have one or two points to make. The Minister may wish to deal with them in summing up.

First, in relation to the European Union, there is probably a very good reason why the United Kingdom and the Republic of Ireland are the two countries which have not signed up to the return directive. That is because of our common law tradition. As the noble and learned Lord, Lord Lloyd of Berwick, very reasonably said, indefinite detention is unlawful, which is the position at the moment. People are able to apply for

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habeas corpus; to make, admittedly subject to the law, applications for bail; and are able to use judicial review. That is one reason at least why we appear to be out of line with other European Union countries on this point.

5 pm

Secondly, as my noble friend Lady Williams very fairly set out, this amendment goes well beyond the return directive in its time period. Under the return directive, there is six months, and exceptionally 18 months, to deal with these issues, whereas this amendment proposes 60 days. I have concerns with that. Admittedly it is in a minority of cases but there are exceptional cases where individuals seek to play for close of play knowing that there is an automatic cut-off which is not subject to judicial process. If they can draw out the process for six months, they are automatically released, as it were, irrespective of the fact that a removal may be pending or that they may abscond. I have great sympathy with an automatic period, but 60 days is too short. It is in that spirit I put forward those points.

Baroness Hamwee: My Lords, when I raised issues about bail and mental health in detention at the previous stage, the Minister gave me assurances about the Home Office policy presumption in favour of release or temporary admission—a “presumption of liberty”, so called. He said:

“Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary”.—[Official Report, 3/3/14; col. 1163.]

As this is a more focused debate than in Committee, when we had, I think, six amendments and the Minister had to cover a lot of ground, perhaps I may ask him some questions of which he is aware.

Can the Minister expand on the criteria applied for detention or conversely release, and say something about Home Office guidance and case law? The issue of the periods applied by other EU member states has also been raised. Like the noble Lord, Lord Bourne of Aberystwyth, I am curious not just about the periods but the legal systems within which those periods sit and how other countries deal with the “abscond” risk. Although I suspect not, does the Home Office have any profile of those who are detained for more than the 28 days that we discussed previously and the more than 60 days we are considering now?

Finally, I cannot resist sharing with your Lordships a case study from the Movement Against Xenophobia, which is one of the many very helpful briefings that we have received. It refers to a man who had been born in the Ukraine and had moved to Poland. He was unable to get a passport and bought a false passport. He was picked up and imprisoned. One might say, “Fair enough”. After his imprisonment, he was held in detention. Post the imprisonment sentence, the detention was 18 months. Eventually, he was successful in challenging that. The irony is that he was trying to leave the UK when he was picked up.

Baroness Smith of Basildon (Lab): My Lords, we have heard some extremely powerful speeches in today's debate, especially on the concerns about overlong detention. Some of the individual cases that we have heard about strike the humanity of all noble Lords—to

1 Apr 2014 : Column 875

take a phrase from my noble friend Lord Judd. We certainly understand the reasons for the amendment and agree that it should always be the objective to reduce the length of time that any individual is in detention. I would hope that in the vast majority of cases it is possible to deal quickly with the process for individuals or find alternatives to detention. As we have heard, that is in the interests of the individuals detained—we have heard that there are 30,000 detainees each year—and in the interests of the taxpayer.

The comments of the noble Lord, Lord Ramsbotham, and my noble friends Lord Judd and Lady Lister, led to a greater concern about the regime of detention centres and the way in which rules are enforced. We agree that immigration rules must always be enforced, but the responsibility of government is to ensure that all detainees are treated humanely, with high standards and safeguards in place. As this amendment seeks to draw attention to, the process of administrating and assessing claims or arranging deportation should be undertaken as quickly and as fairly as possible.

Long delays and long periods of detention bring with them other problems. I am sure that the Minister is aware of the research undertaken by Women for Refugee Women which illustrates concerns about access to healthcare and support for physical and mental health. Only this week, we heard the extremely sad and distressing account of a woman of 40 who died at Yarl’s Wood detention centre. I was pleased that yesterday the Minister announced an investigation and review into that sad and tragic death.

Will the Minister also confirm that there will be a full investigation into the reports of sexual abuse of vulnerable women at Yarl’s Wood by Serco employees? What action has been taken as a result of the report of the inspector who said that abused and trafficked women are being held at Yarl’s Wood? The chairman of the Home Affairs Select Committee in the other place said yesterday that Serco has confirmed to him that in the past few years seven employees had been dismissed for inappropriate behaviour. The Minister will also be aware that there are ongoing police investigations and criminal proceedings, although Nick Hardwick, in his most recent inspection report, said that—I paraphrase—good progress was being made but more needs to be done. There are real concerns that have been illustrated across the House today.

However, that is not the amendment before us today. This is specifically about the length of time an individual can be held, and we heard examples of overlong detention from the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Lloyd. My concern about the amendment is that it is slightly clumsily worded and does not necessarily achieve what it sets out to do. It has an arbitrary time limit of 60 days. Within that, there is no risk assessment of the issues of whether or not someone is likely to abscond or any assessment of the reasons for the delay.

More importantly, and this gives us the most concern, foreign criminals who have completed their sentences may be detained while they await deportation. That may take a little longer than 60 days to resolve—to get all the paperwork in place, ensure that they are treated

1 Apr 2014 : Column 876

properly and make an assessment of where they can be deported to. We would then be faced with the prospect of releasing those who do not have a legal right to be in the UK and who have become convicted offenders who have received a custodial sentence. That could lead to complications in the paperwork or the complex nature of the deportation. If the amendment were passed today as it stands, we could have a difficulty with former offenders who have been held in detention prior to deportation.

Unless I have missed something, there is no process in the amendment to allow for any extension in any circumstances, whether for a genuine risk of absconding or because of deportation for previous criminal offences. There is no qualification at all in the amendment as it stands. Having said that, I think it was my noble friend Lord Judd who used a phrase—which is well worth this House returning to on a number of occasions—about the humanity and the principle of the issue. The noble Lord, Lord Ramsbotham, referred to the amendment being a “stimulus”, because the Government should be aiming to achieve far shorter detention periods.

I fully appreciate that this amendment could focus the Government’s attention on being far more efficient in dealing with cases but there is a risk here, as I have outlined, and I am not convinced that the Government would necessarily take note in that way. I would like to hear some assurances from the Minister that action will be taken to deal with any abuses of the rules and regime in any detention centre. I hope that he will not dismiss the objectives of the amendment before us today because, whatever flaws there may be in the detail, this amendment raises issues of serious concern across your Lordships’ House, as he has heard, that have to be addressed. Although we cannot support this amendment as it stands, we would hope for a very sympathetic and helpful response from the Minister.

Lord Taylor of Holbeach: My Lords, I am very grateful to the noble Baroness for that contribution. I think she recognises the burdens on the Government in dealing with this matter. I also say to her that, clearly, if there is evidence of wrong-doing at a detention centre, it will be investigated. However, I would like to write to the noble Baroness in more detail on that because I cannot address from the Dispatch Box the particular issues that she raises.

However, as to the general principle, we have had a really good debate today on detention. The truth of the matter is that no Government want to detain people more than they have to. I think the figure was quoted of £36,000 per annum for each detainee, which is enough incentive for any Government, not just on humanitarian grounds but on hard-nosed business terms. We do not want people detained, but these are difficult issues and we have vested, quite rightly in my view, the determination of these matters in the courts. It is the courts that determine the period of detention. Although the noble and learned Lord, Lord Lloyd of Berwick, has talked about the legal background to these issues, this is a case where that balance between the Executive and the court system determines outcomes.

I will now try to address the issues in the amendment, which my noble friend Lady Williams characteristically presented with the passion that has driven her through

1 Apr 2014 : Column 877

a most distinguished political career. Amendment 9 would require the release of any individual in immigration detention subject to a removal decision after 60 days’ detention, no matter how imminent their removal was. Removal might be due after 62, 64 or 70 days, but 60 days would be the effective limit.

There is an absconding risk in that, which I think noble Lords will recognise. Having a finite limit would give people an incentive not to co-operate with removal. Much of what we have been discussing here has been discussed in very high-minded terms, but there are people in detention who will do everything that they can to ensure that they are not removed. If an individual refused to co-operate with arrangements for their removal—for example, in obtaining a travel document, which requires the co-operation of the detainee—they would be able to benefit from their non-compliance when making a bail application after 60 days of detention, even if the sole reason for their detention and for their not being removed was their lack of compliance. Even if a limit were to be imposed, 60 days is not the right limit, and I hope I can convince noble Lords of that. The Government’s view is that it is not appropriate to legislate to set a time limit for immigration detention.

5.15 pm

It is a basic principle of English law, as has been alluded to by a number of noble Lords today, that the burden is on the person who is exercising any power to detain to show that the lawful authority to detain exists. This right is ancient in origin: from habeas corpus to Magna Carta to the 1688 Bill of Rights. There is active judicial oversight to police and protect this basic principle. As was referred to by my noble friend Lord Bourne of Aberystwyth, the well established common law and case law, coupled with active judicial oversight and the Home Office’s own published policies and procedures, mean that detention is used proportionately.

A number of noble Lords, including my noble friend Lady Williams, referred to Hardial Singh. Removal must be possible within a reasonable time—that is the principle that underlies the Hardial Singh judgment. The noble and learned Lord, Lord Lloyd, mentioned Hardial Singh as well. The principles underlying that judgment were endorsed by the Supreme Court; for example, in the judgment in Lumba. The courts have been satisfied for some 30 years that the Hardial Singh principles are appropriate and do not lead to what might be described as indefinite detention.

I hope that I have given some background to the legal framework. Much of it derives from our common-law principles and lies in the relationship between the Executive, the citizens and the courts that resides in common law. I must correct my noble friend on one point of fact; we have checked this. Germany actually has a full 18-month minimum detention period—of course, I mean maximum; even the German economy could not withstand that in all cases.

Perhaps I can also help noble Lords by putting this matter in perspective. A large majority of people leaving immigration detention in 2013—81%—had been in detention for two months or less. During the

1 Apr 2014 : Column 878

same period, less than 1% of those leaving the immigration detention estate had been detained for a year or more. Those in long-term detention will be mostly foreign national offenders, who pose a public protection risk, and their detention would have been prolonged by their failure to comply with the removal process. I think I gave noble Lords some numbers on this in Committee. Case law recognises that detention longer than 60 days may be appropriate in some cases and that the legality of detention is highly fact-specific. It is an issue that cannot and should not have an arbitrary upper time limit imposed.

To illustrate that, I will give the example of the recent case of R (Robert Kajuga) v Secretary of State for the Home Department. His Honour Judge Blackett reflected on when detention is reasonable when an individual refuses to co-operate with removal. I hope that noble Lords will excuse me for paraphrasing, but His Honour Judge Blackett came to the conclusion that if a person obstructs the removal process and fails to co-operate, the reasonable period will be longer—probably much longer—so long as the Secretary of State makes real and continuing efforts to ascertain where the detainee has come from and should be returned to. The judge concluded his remarks by observing that, if the period of reasonable detention was not extended by non-compliance of the returnee, those liable to deportation could frustrate the process and work it to their advantage by failing to co-operate with the authorities.

Immigration law is very settled in this area. In my belief, there is no need to legislate. By legislating, we would remove discretion from the judiciary to decide when detention under immigration powers was reasonable. We should not undo such settled case law lightly. Therefore, despite the eloquence with which she has moved her amendment, I call on my noble friend to withdraw it.

Baroness Williams of Crosby: My Lords, I thank the Minister very much for his carefully thought-through response and all Members of the House for their careful consideration of this debate.

I have to say that, for me, this is a heartland issue of conscience, as it must be for many other Members of the House. I therefore beg to hear the opinion of the House on this matter.

5.21 pm

Division on Amendment 9

Contents 54; Not-Contents 360.

Amendment 9 disagreed.

Division No.  1


Adebowale, L.

Alton of Liverpool, L.

Avebury, L. [Teller]

Bradshaw, L.

Brennan, L.

Butler-Sloss, B.

Campbell of Surbiton, B.

Clancarty, E.

Colville of Culross, V.

Coussins, B.

Durham, Bp.

Falkland, V.

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Fearn, L.

Fellowes, L.

Grey-Thompson, B.

Hannay of Chiswick, L.

Harries of Pentregarth, L.

Hayman, B.

Hollins, B.

Howe of Idlicote, B.

Hylton, L.

Jones of Moulsecoomb, B.

Kerr of Kinlochard, L.

Leicester, Bp.

Lister of Burtersett, B.

Lloyd of Berwick, L.

Low of Dalston, L.

Luce, L.

Maclennan of Rogart, L.

Mallalieu, B.

Mar, C.

Masham of Ilton, B.

Montgomery of Alamein, V.

O'Loan, B.

Palmer of Childs Hill, L.

Peterborough, Bp.

Prashar, B.

Ramsbotham, L.

Rennard, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L. [Teller]

Sandwich, E.

Smith of Clifton, L.

Stair, E.

Steel of Aikwood, L.

Stern, B.

Storey, L.

Taylor of Goss Moor, L.

Teverson, L.

Tonge, B.

Wilkins, B.

Williams of Crosby, B.

Wills, L.

Wilson of Tillyorn, L.


Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Ahmed, L.

Alderdice, L.

Allen of Kensington, L.

Anderson of Swansea, L.

Andrews, B.

Anelay of St Johns, B. [Teller]

Armstrong of Hill Top, B.

Armstrong of Ilminster, L.

Arran, E.

Astor of Hever, L.

Attlee, E.

Bach, L.

Baker of Dorking, L.

Bakewell, B.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Bassam of Brighton, L.

Bates, L.

Beecham, L.

Berridge, B.

Best, L.

Bhatia, L.

Bilimoria, L.

Billingham, B.

Black of Brentwood, L.

Blackstone, B.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Boothroyd, B.

Borrie, L.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, L.

Boyce, L.

Brabazon of Tara, L.

Bradley, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Browning, B.

Burnett, L.

Buscombe, B.

Byford, B.

Caithness, E.

Cameron of Dillington, L.

Campbell-Savours, L.

Carrington of Fulham, L.

Carter of Coles, L.

Cathcart, E.

Chandos, V.

Christopher, L.

Clark of Windermere, L.

Clarke of Hampstead, L.

Collins of Highbury, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Corston, B.

Courtown, E.

Craig of Radley, L.

Craigavon, V.

Crathorne, L.

Crawley, B.

Crickhowell, L.

Davies of Coity, L.

Davies of Oldham, L.

De Mauley, L.

Dear, L.

Deech, B.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Donaghy, B.

Dundee, E.

Dykes, L.

Eames, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Empey, L.

Evans of Watford, L.

Falkner of Margravine, B.

Farrington of Ribbleton, B.

Faulks, L.

Filkin, L.

Finkelstein, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Freeman, L.

Freud, L.

Gale, B.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

Glasgow, E.

Glenarthur, L.

1 Apr 2014 : Column 880

Glendonbrook, L.

Gold, L.

Golding, B.

Goodlad, L.

Goschen, V.

Gould of Potternewton, B.

Grantchester, L.

Green of Hurstpierpoint, L.

Greenway, L.

Grender, B.

Griffiths of Fforestfach, L.

Grocott, L.

Hamilton of Epsom, L.

Hanworth, V.

Harris of Haringey, L.

Harris of Peckham, L.

Harrison, L.

Haskel, L.

Haughey, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Hollick, L.

Holmes of Richmond, L.

Hooper, B.

Hope of Craighead, L.

Horam, L.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe, E.

Howe of Aberavon, L.

Howells of St Davids, B.

Howie of Troon, L.

Hughes of Woodside, L.

Humphreys, B.

Hunt of Kings Heath, L.

Hunt of Wirral, L.

Hutton of Furness, L.

Inglewood, L.

James of Blackheath, L.

James of Holland Park, B.

Jay of Paddington, B.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones, L.

Jones of Cheltenham, L.

Jones of Whitchurch, B.

Jopling, L.

Kakkar, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kilclooney, L.

King of Bridgwater, L.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkham, L.

Kirkhill, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawrence of Clarendon, B.

Lawson of Blaby, L.

Layard, L.

Lea of Crondall, L.

Leach of Fairford, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Liddell of Coatdyke, B.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Lipsey, L.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Lucas, L.

Luke, L.

Lyell, L.

Lytton, E.

McAvoy, L.

McColl of Dulwich, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

MacGregor of Pulham Market, L.

McIntosh of Hudnall, B.

Mackay of Clashfern, L.

Mackay of Drumadoon, L.

McKenzie of Luton, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Mancroft, L.

Mandelson, L.

Manzoor, B.

Marks of Henley-on-Thames, L.

Marlesford, L.

Martin of Springburn, L.

Massey of Darwen, B.

Maxton, L.

Mayhew of Twysden, L.

Mendelsohn, L.

Miller of Chilthorne Domer, B.

Mitchell, L.

Monks, L.

Montrose, D.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Bolton, B.

Morris of Handsworth, L.

Moynihan, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Noon, L.

Northbrook, L.

Northover, B.

Norton of Louth, L.

Nye, B.

O'Cathain, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Paddick, L.

Palmer, L.

Palumbo, L.

Pannick, L.

Parminter, B.

Patel, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Patten, L.

Pendry, L.

Perry of Southwark, B.

Pitkeathley, B.

Plant of Highfield, L.

Plumb, L.

1 Apr 2014 : Column 881

Ponsonby of Shulbrede, L.

Popat, L.

Powell of Bayswater, L.

Prosser, B.

Purvis of Tweed, L.

Quin, B.

Ramsay of Cartvale, B.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Rendell of Babergh, B.

Ridley, V.

Risby, L.

Robertson of Port Ellen, L.

Rogan, L.

Rooker, L.

Roper, L.

Rosser, L.

Rowe-Beddoe, L.

Royall of Blaisdon, B.

Ryder of Wensum, L.

Sassoon, L.

Sawyer, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Sherlock, B.

Shipley, L.

Shrewsbury, E.

Simon, V.

Slim, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Soley, L.

Spicer, L.

Stedman-Scott, B.

Stephen, L.

Stewartby, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Sutherland of Houndwood, L.

Suttie, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Taylor of Holbeach, L.

Taylor of Warwick, L.

Temple-Morris, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Thornton, B.

Trefgarne, L.

Trenchard, V.

Triesman, L.

True, L.

Trumpington, B.

Truscott, L.

Tugendhat, L.

Tunnicliffe, L.

Turnberg, L.

Turner of Camden, B.

Tyler of Enfield, B.

Uddin, B.

Ullswater, V.

Vallance of Tummel, L.

Verma, B.

Vinson, L.

Wakeham, L.

Wall of New Barnet, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Walton of Detchant, L.

Warner, L.

Warnock, B.

Warsi, B.

Watson of Invergowrie, L.

Wheatcroft, B.

Wheeler, B.

Wigley, L.

Wilcox, B.

Williams of Trafford, B.

Winston, L.

Wood of Anfield, L.

Woolf, L.

Woolmer of Leeds, L.

Worthington, B.

Wrigglesworth, L.

Young of Graffham, L.

Young of Norwood Green, L.

Younger of Leckie, V.

5.41 pm

Clause 15: Right of appeal to First-tier Tribunal

Amendment 10

Moved by Baroness Berridge

10: Clause 15, page 13, line 39, leave out from “unless” to end of line 40 and insert “the Tribunal is satisfied that the matter is within its jurisdiction and there were good reasons for not raising the matter before the Secretary of State”

Baroness Berridge (Con): My Lords, I declare an interest as a trustee of the think tank British Future. I apologise that this my first speech in your Lordships’ House on the Bill although I am a member of the Joint Committee on Human Rights and have been involved in considering this Bill from an early stage. I have been grateful for the comments of my noble and

1 Apr 2014 : Column 882

learned colleagues, and I accept that the amendment is not perfect. It was intended to raise this matter in Committee, but unfortunately your Lordships went rather quickly and a time limit was missed.

I thank the Minister for the lengthy and detailed correspondence that he has engaged in with the Joint Committee on Human Rights. As I hope noble Lords will realise, there are important points of principle in Amendment 10. There is no suspicion of the matters that were properly raised by the noble Baroness, Lady Smith. I think all parties share the concern about the difficulties that are faced in deporting foreign criminals, but that is not part of the principled and mature correspondence that has passed between the JCHR and the Government.

This amendment reflects the view of the Joint Committee on Human Rights and provides a more appropriate solution to a problem that it is accepted has arisen in the tribunal. The tribunal hears appeals from immigration decisions made by the Home Office. The Bill in my view breaches a constitutional principle that you cannot be both a party to a case and determine how it is heard. In colloquial terms, you cannot be both the football referee and the captain of one of the teams.

The problem that has arisen in the tribunal is that the law changed in 2002 and introduced the one-stop appeal notice, which meant, sensibly, that the tribunal should deal with all the immigration issues concerning the person before it in one hearing. This has largely prevented the proliferation of appeals from different claims made consecutively by the same person that was bogging down the immigration appeals system.

However, following the statutory instructions to hear everything together, the tribunal has developed the practice of hearing new matters that have arisen, perhaps even on the morning of the hearing, there and then. The new matter is determined by the tribunal without the Secretary of State first having made a decision on it.

I always find it hard to grasp issues in the abstract, and I thank the practitioners who make their living going daily in and out of the First-tier Tribunal for having helped me enormously in the past few days. A typical case might be where a person is appealing a Home Office decision to refuse an asylum case; for instance, because they fear persecution as a Baha’i believer from Iran. However, they come to the hearing with a new wife who is a British citizen, meaning that they now have a Human Rights Act claim in addition to the asylum claim. Sometimes the tribunal will adjourn the asylum appeal to give the Secretary of State an opportunity to make a decision on the new claim for family life, but it may say that as everyone is there, all the evidence is present in court and the appellant has a serious illness it should get on with it and decide the matter there and then.

It is this situation that the Government wish the Bill to change. Section 85(5) will meant that the tribunal must not consider the new matter—the claim to family life—unless the Secretary of State has given consent for it to do so, so a party to the proceedings has to consent to the judge hearing that new matter. The scope of the tribunal’s jurisdiction is dependent on the consent of the respondent to the appeal. If I am

1 Apr 2014 : Column 883

counsel in the case, I feel I must turn away from the judge towards my opponent and start making submissions, pleading for consent for the new matter to be raised. That would be a most unusual situation. That was conceded by the Government in a response to a question by the Joint Committee, in which they stated,

“as far as the Home Office is aware there are no other similar provisions in other statutory contexts”.

This would be new law.

5.45 pm

There has been one other attempt by the Government to have control over the way the court operates when they are party to proceedings. As your Lordships may remember, in the Justice and Security Bill the Government, as party to the proceedings, tried to determine whether a closed material procedure would be used. This Chamber said that that was a matter for the judge to determine, and the Government conceded the point.

That opposing sides require an independent adjudicator in charge of proceedings is a fundamental common law principle. It extends across the board to disciplinary proceedings for staff in the workplace. Imagine if FIFA were to say that some of the referee’s powers were indeed held by the captain of one of the teams.

I also struggle with the assumption underlying the Bill that it is always the fault of the appellant or their legal representatives that the tribunal has new matter to deal with at the last minute. Imagine if my client is a gay Ugandan claiming persecution if he were to return home. He puts all his claims in the one-stop notice, but the Home Secretary refuses grounds for protection. He comes to a pre-hearing conference at my chambers with a partner. He now has a family life claim, so I want the Secretary of State to make a decision on this, and I want the hearing vacated. I want my client to have, in effect, two bites at the cherry: a decision from which, if we are unsuccessful, he can appeal. I get the evidence from my client in that fortnight, and I take to the phones and to e-mail. I try to get hold of the Home Office in order to vacate the hearing, but I cannot do so, so everyone has to turn up at the tribunal, and unfortunately the presenting officer first saw the file at 5 pm the night before. Why should the court not say that it will deal with all this today? It is the fault of the Home Office as it could have had the opportunity of making a new decision if it had picked up the phone. By the way, since I saw my client in conference two weeks earlier, he has developed cancer. In these rare situations, the tribunal should be able to determine what is just in the matter between the parties. It should not be left to my opponent to have to consent.

The Government give four reasons for their needing this power to consent. I shall deal with them briefly. First, they are being usurped as the primary decision-maker on new matters. The fallacy in this argument is that, due to sometimes poor-quality decision-making at first instance, the tribunal has become the primary decision-maker in all but name. To give you an example, a Christian convert from Iran is asked by the Home Office questions such as, “What is Lent?”, which is unknown in Iran. It refuses permission. By the time the new evidence is on appeal, you have half a church

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congregation, the vicar, the baptismal certificate and all kinds of testimony, so more than 95% of the evidence is completely new. In all but name, that is being the primary decision-maker.

Secondly, the Government argue that the tribunal is a statutory creature and not like a court. As the noble and learned Baroness, Lady Hale, said in Saleem v Secretary of State for the Home Department:

“In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts”.

Thirdly, the Government say that they are not stopping the claim being determined; it is just a matter of the timing of the decision. In the example I outlined where illness befalls someone, timing can be critical. The tribunal should also be the final arbiter on the timing in this regard. I am also told by practitioners that if, like a game of snakes and ladders, you have to go right back to the beginning to take the new matter, that can mean many months of delay and you also incur a fee, which I am told is now £518, to take that new matter back.