Fourthly, the assertion is that the appellants are still playing the system. Yes, some are, but many are not represented, and the fact that they do not know that their claim that they fear for their life from attack in a family feud if they were to return to, say, Sri Lanka is not an asylum claim but a human rights claim can be forgiven. Will the Minister outline who determines what is and is not a new matter? It is often not clear on the paperwork, as in the example that I have outlined. Is that or is that not a new matter? We have never had to plead the law. If all the facts are there, has it not already been raised? Do we not run the risk of mini-trials on what is and is not a new matter? Of course, I can ask for the decision not to consent to be judicially reviewed. I thought that satellite judicial review went against what the Government were seeking to achieve through their changes.

I agree with my noble friend the Minister that the tribunal needs restrictions on these new matters and that it has perhaps done more than what the statutory one-stop appeal envisaged. However, there are rare cases where justice demands that a new matter is heard, and they should have a narrowly defined discretion in which to hear those cases.

As I say, Amendment 10 is not perfectly drafted and I am aware that it might not quite hit the spot, but I hope that my noble friend will respond and think again on the important constitutional principle that is raised by this. I hope that Her Majesty’s Government will come back with a perfectly drafted, tightly worded amendment at Third Reading, rightly restoring the place of the tribunal in controlling its own jurisdiction—if not, merely for emphasis, we could adjourn for 30 minutes and tour the Victoria Tower. There is not another example of this on our statute books at present. I ask noble Lords not to create such a precedent. I beg to move.

Lord Avebury: My Lords, I congratulate my noble friend on moving this important amendment, based on one of the recommendations of the Joint Committee on Human Rights, of which she is a distinguished member.

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Clause 15 removes the right of appeal to the tribunal from all immigration decisions except those dealing with protection and human rights. In those remaining cases, new Section 85(5) of the Nationality, Immigration and Asylum Act, inserted by Clause 15, requires the Secretary of State’s consent for a new matter to be raised before the tribunal, as it frequently is because new evidence comes to light following the original decision; my noble friend has given examples of how this can happen. We also heard from my noble friend that in the opinion of the JCHR it should be for the tribunal itself to decide whether the new matter is within its jurisdiction and, if so, to consider it on appeal, with the Secretary of State responding to it as she normally does.

It is not suggested that the tribunal has allowed the abuse of its own process in the past, or that it has treated the Secretary of State unfairly, or that the existing process is inefficient. What can happen not infrequently, however, is that the Secretary of State withdraws her decision, saying that she wishes to reconsider the case, and then returns several months later with a new decision very similar to the previous one, wasting the time and money of both the appellant and the tribunal. The Tribunal Procedure Committee is consulting on a rule for the First-tier Tribunal similar to the one that prevents the Secretary of State from putting a stop to an appeal in the Upper Tribunal by withdrawing her decision. The Immigration Law Practitioners’ Association suspects that the subsection we seek to amend is designed to thwart such a change.

My noble friend referred to the Constitution Committee, which has drawn the attention of your Lordships to what it and the JCHR both consider to be a serious question in relation to Clause 15(5): whether it undermines the common law right of access to justice. The Government’s case is that appellants may be able to get to the court by way of judicial review, and no doubt some will do so in spite of the financial obstacles created by the abolition of legal aid. However, this conditional route does not satisfy the common law, and that will no doubt be tested in the courts. The judicial review cases will be more expensive and take longer than appeals, even though it will now be the tribunal that hears them because Treasury solicitors and counsel will have to be employed; they are very expensive people. Have the Government made any estimate of the number of JR cases and the reduction in the savings that were otherwise expected arising from the JR cases that were otherwise to be heard?

In the remaining cases, now to be dealt with via administrative review, a smaller proportion of those concerned will be successful than if they had been able to appeal. That is the whole point of the exercise: not to simplify the way the cases are handled but getting to the same outcomes.

Like my noble friend, I object to a proposal which gives the Executive power to intervene in the procedures of a court of law, and particularly so when it is one of the parties to the case in question. I hope that the Government will think again.

Lord Brown of Eaton-under-Heywood (CB): My Lords, having spent some five years as Treasury counsel, periodically attempting to remove illegal immigrants,

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and then having spent some decades as a judge lamenting the absurdly over-elaborate appeals systems under which those resisting removal could string out a whole series of appeals for years on end, I can readily see—to use an inelegant colloquialism—where the Government are coming from in Clause 15(5). It is now some dozen years since the so-called one-stop appeal was sought to be introduced. Now, of course, the Government are intent, yet more fundamentally, on substituting in large part administrative reviews for appeals in all but the comparatively few cases where truly basic freedoms are at issue: refugee status, humanitarian protection and human rights.

For my part, I am not against this general reduction in appeal rights, although I may not go quite so far as to vote against the next proposed amendment, which is to remove the entirety of Clause 15. Nor am I against, as I made plain in Committee, what is now Clause 18, which to some extent may be expected to constrain the court’s readiness to allow Article 8 considerations to frustrate attempts to remove foreign criminals and others who are here in violation of immigration controls. I interpolate only that Clause 18 will of course be informed by Amendment 58, tabled by the Minister and the noble Earl, Lord Listowel, to safeguard the welfare of children.

I am, however, strongly against Clause 15(5), to which this amendment goes. This provision seems to me to represent a bridge too far. The noble Baroness, Lady Berridge, has already clearly explained the basic objections to this provision and has noted that serious reservations have been expressed about it: expressed twice now by the Joint Committee on Human Rights and yet more recently by the Select Committee on the Constitution. It would not be helpful for me to restate all these objections in detail. Suffice it to say that it seems intrinsically objectionable for the Government, one of the parties before the tribunal on the appeal, themselves to have the last word with regard to what the tribunal may or may not consider.

By all means let the Government object to a new ground of appeal or some new reason for the appellant seeking to stay if they are genuinely unable to deal with it or, indeed, if they are genuinely unable to reach and declare their own decision on it by the time it is raised. Indeed, the tribunal may well hold that the Government are entitled to an adjournment if, in truth, they are prejudiced by the point being taken late. However, it is quite another thing to say, as Clause 15(5) does, that the Government can deny the tribunal the right to deal with a new matter on the appeal before it, and thus force the appellant—assuming that he wishes to pursue the point—to start all over again, with all the delay and, as we have heard, the prohibitive expense that that would necessarily involve. That, I respectfully repeat, goes altogether too far. Your Lordships should prefer instead wording which—if not here in perfect formulation—is in some way akin to that here proposed, which, heaven knows, is a modest enough power to confer on the tribunal itself.

6 pm

Baroness Lister of Burtersett: My Lords, I support the amendment moved so ably by the noble Baroness, Lady Berridge, who is a colleague on the Joint Committee

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on Human Rights. I shall simply quote from what the committee said as I think it sums up the case now being made:

“we remain concerned, even after considering the Minister’s explanation of the purpose of the provision, about whether it is compatible with the right of access to court, the principle of equality of arms and the rule of law for the court’s power to consider a new matter to depend on the ‘consent’ of the Secretary of State. We are struck by the fact that the Government could not identify any other similar provisions in other statutory contexts”—

as the noble Baroness has already pointed out—

“which confirms our sense that this provision crosses a line which has not previously been crossed”—

I think that is a very good point—

“in relation to an aspect of a tribunal’s jurisdiction being dependent on the consent of the Minister who is the respondent to the appeal”.

There is a basic principle here about justice being seen to be done. If this provision goes through as it stands, I do not think that justice will be seen to be done. As the noble Baroness said, perhaps the answer is for the Minister to give a commitment to come back at Third Reading with an amendment that is better expressed. However, I hope that the Government are listening and will respond positively to the amendment.

Lord Pannick (CB): My Lords, I, too, support this amendment, which raises a short but vital issue of principle, which is whether it is consistent with the rule of law for one party to the proceedings to have the power to determine the scope of the jurisdiction of the tribunal before which it appears. So far as I am aware there is no precedent for such provision, for the very good reason that it is objectionable in principle. It should be a matter for the tribunal to apply whatever criteria Parliament thinks appropriate to determine whether the tribunal can hear an appeal that raises new grounds. I simply cannot understand why the Secretary of State does not trust the tribunal to decide on the application of the criteria which Parliament sees fit to lay down. I, too, hope that the Minister will be able to tell the House that, in the light of the concerns expressed this afternoon, the Government will think again on this important matter before Third Reading.

Lord Mackay of Clashfern (Con): My Lords, I have the disadvantage of not seeing this matter quite in the way that my colleagues have seen it. This tribunal is an appeal tribunal from a judgment of the decision of the Secretary of State. This clause deals with a situation in which it appears, in the course of the proceedings or perhaps before they start, that there is a new ground of decision that has not as yet been dealt with by the Secretary of State. It is the Secretary of State’s jurisdiction to decide that, and the appeal tribunal’s jurisdiction is to consider appeals that arise from the decision of the Secretary of State. Therefore the essence of this particular procedure appears to be that a new decision is called for from the Secretary of State on a matter which has not been before the Secretary of State previously.

I do not see how that is in any way a breach of principle, but I know from experience long past that the way in which immigration tribunals deal with these matters has been a cause of great difficulty.

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During my time there were great accumulations of arrears in the immigration tribunals, and all sorts of efforts were made to try to deal with that. One of my successes, which I cherish, was to get money from the Treasury to set up new immigration appeal tribunals in the hope that that would reduce the number of cases waiting. Like all such efforts, that does not seem to have worked, as the list of appeals still seems to be pretty long.

That seems to be the essence of this issue. I agree that there are problems when this sort of thing arises in the course of an appeal on an earlier decision, but the fact that that happens is something which has to be dealt with. One of the difficulties that my noble friend Lady Berridge referred to was that it is often very difficult, in the course of these proceedings, to get in touch with the Home Office representative before the case starts; the case goes ahead without anyone getting in touch with them. That is not a new difficulty, and I suppose that this amendment is intended to deal with it to some extent. There is an underlying difference in principle between the way in which my colleagues look at this and the way I think it is possible to look at it.

Lord Woolf (CB): My Lords, this is a matter in which I, like the noble and learned Lord, Lord Brown, have had considerable practical experience, first as a Treasury junior, who for years advised and acted for the Government on these problems that arise in immigration matters, which can be very frustrating indeed.

I have been delighted at the steps that were taken, with the encouragement of the judiciary, to transfer matters which previously went before the courts on judicial review to tribunals. We have to recognise that there are situations within the court system where tribunals are better equipped to deal with matters than the courts are, because the tribunals’ knowledge and experience is so considerable. Because of that, this process has continued. I am happy to say that the noble and learned Lord, Lord Mackay, does himself an injustice when he suggests that what he sought to do has not produced positive results. It has, and I can say to the House with confidence that if we had not built up the tribunal system in the way it has been built up, from a practical point of view judicial review would be an area of great difficulty in the courts today.

It is therefore very important that we do not do something that is contrary to principle and which reflects adversely on the tribunal system. Of course, that was not the intention of those who were responsible for drafting the amendment now under consideration. However, the transfer from the tribunal that has jurisdiction to deal with matters of this sort, for the sort of reasons that have been put forward, to one of the parties of the proceedings, is just totally and utterly contrary to principle and it should be and can be rectified in a way that is acceptable.

The noble Baroness, Lady Berridge, was very modest about her amendment; she said that it may not be perfect, and she may be right about that, but this matter certainly warrants consideration. It would be a very undesirable precedent indeed to create a situation where one of the parties to the proceedings has in

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effect to give its consent to the other party doing something that justice may require. In addition, the suggestion that something should go back to the beginning is just out of accord with what is now the practice in the courts. It is true that the real decision-making body is the Minister and not the courts, but for years, in my experience, the courts, when a new point has arisen, have taken the view that it is more practical and more in accord with common sense for the tribunal that is dealing with the matter to continue to deal with the new matter, if it thinks that it is right to do so, rather than to send it back to the Secretary of State, who is technically the decision-making body under the legislation.

With respect to the noble and learned Lord, Lord Mackay, to whom I bow in these matters, because he has been such a benign influence in the development of our court system, on this occasion the difference that he has with the noble and learned Lord, Lord Brown, and myself is misplaced and is not in accord with the practice adopted by the courts today, when a matter comes before them that should technically go back and discretion is exercised by the court to save everybody’s time and money by dealing with it themselves. So I urge the Minister to have another look at this matter, consult on it and come back at Third Reading.

Lord Hope of Craighead (CB): I shall say a few words in support of the noble Baroness’s amendment. I thought that she made a very valuable point when she referred to the issue as raising an issue of constitutional principle, because it goes right back to the formation and foundations of the rule of law, where one of the two basic principles is that no man should be a judge in his own court. This was long before the referees got on to the football pitch, but it is an absolutely basic rule of law teaching, and it acquires particular force as a principle when the party that one is talking about are the Executive. One is taught that there should be a separation of powers between the judiciary and the Executive, and one can think of many countries that one would not wish to live in where the Executive are able to dictate to the courts whether or not they will entertain an argument. It is that kind of spectre that is raised by the proposal in the Bill, which I hope that the Minister will look at again, more carefully.

As for practice in the courts, as the noble and learned Lord, Lord Woolf, was indicating, it is quite common in judicial review for fresh grounds to call for a fresh decision in the course of the same process. The courts do not as a matter of practice send the whole thing back to the beginning so that it has to start off with a fresh writ, to begin all over again. They are well used to this—and, indeed, the kind of test in the amendment is one that is commonly applied by the courts every day in deciding whether or not fresh grounds should be argued.

I have two points respectively on the wording of the amendment. First, when I read the amendment for the first time it occurred to me that I would have liked to see the word “previously” at the very end of it, just to make it clear that the issue is whether there were good grounds for not raising the matter before the Secretary of State on the previous occasion when he was looking at the issue. Secondly, the test that is put

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in the amendment is relatively mild—“good reasons”. There would perhaps be room for looking at that test again and deciding whether it should be put slightly higher, if the Secretary of State is concerned that the court is not applying the kind of test that he would like to be applied—“very good grounds” or “extremely”, or something of that kind. One cannot draft on the Floor of the House.

6.15 pm

The way of doing it to fit in with the constitutional principle, which surely a Government who believe in the rule of law would wish to uphold, is to put the test that the Secretary of State would wish the tribunals to apply into the Bill at the appropriate standard and then, of course, the Secretary of State can be represented and present the argument to the effect that that test is not being satisfied. So I respectfully suggest that it would be dangerous to create what is plainly a precedent, and the wrong kind of precedent to set. It would be a disaster if one found committees in later days trawling through the statute and saying, “You can find it in the Immigration Act 2014, so it’s all right”. I suggest that that is the last thing that we would want to create as a precedent.

Those remarks are just a supplement to the reasons carefully advanced by the noble Baroness. I hope that the Minister will look more carefully at this matter.

Viscount Eccles (Con): My Lords, it is very risky for a non-lawyer to intervene in such a debate, but I would be most grateful if my noble friend on the Front Bench and, indeed, my noble friend proposing the amendment, would relate new subsection (5), which Clause 15(5) will substitute for Section 85(5) of the 2002 Act, to new subsection (6) because, if I have read it right, new subsection (6) attempts to define “new matter” in a rather narrow way and not in one that means that just anything can be considered by the Secretary of State to be a new matter and therefore referable back to the beginning. I feel that I need enlightening on the relationship between those two proposed new subsections.

Lord Hope of Craighead: The reason why I suggested the word “previously” is because that is in new subsection (6) and would link in new subsection (5) with new subsection (6) to show that what one is talking about is exactly the kind of matter being referred to in the definition in new subsection (6).

Baroness Smith of Basildon: My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.

I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football.

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But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.

My only question to the noble Baroness, which I asked her when I saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.

The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD): My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.

The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.

The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.

However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned

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Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—

Lord Woolf: Perhaps the noble and learned Lord will ponder on the following. Although, of course, the Secretary of State must be the primary decision-maker, the Secretary of State may not be content for the tribunal to deal with a matter and may think it is much better that it should not do so, even though it would give the greatest attention to the fact that there is an objection to the matter being dealt with by it on the very ground the Minister sets out. The matter he sets out is just the sort of matter which you can rely on the tribunal to take into account at its discretion when deciding whether to send it back to the starting point. I refer to delay in this context. It is also just the sort of matter which the Court of Appeal, for example, will take into account in considering whether it will send a matter back to the Secretary of State or deal with it itself because it is in a better position to deal with it than anybody else.

Lord Wallace of Tankerness: My Lords, I hear the point which the noble and learned Lord makes. It is also important to recognise that we have to look at where this matter might best be dealt with. The Secretary of State can still consent to the new matter being determined within the context of the existing appeal. That is obviously an issue that the Secretary of State would have to consider in deciding whether or not to give that consent.

Lord Woolf: I again apologise for interrupting, but will the noble and learned Lord bear in mind that the Secretary of State in this context means the person who is conducting the case on behalf of the Secretary of State in the tribunal on the day of the hearing? If he has not already received instructions on how to deal with it, all he can do is ask for an adjournment so that the matter can be referred back to those who have more authority than he has to decide what course to take. That will mean that, inevitably, the ability of the court—or, in this case, the tribunal—to deal with it in a sensible and summary way is in fact not going to happen in practice.

Lord Wallace of Tankerness: My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understands that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously that matter could be appealed to the tribunal.

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I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I am not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and my noble and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.

I am always wary—as was the noble Baroness, Lady Smith—of using football analogies, but they were mentioned by my noble friend in moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, “By the way, we will just go to the referee and say, ‘If we are having a penalty shoot-out, it will do for the other cup tie that we are to play next week. We will just do the two in one’”. If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where a person is going to be denied the opportunity to bring a separate case on a new matter. They would still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal route would still be open to them.

The proposed measure could create an incentive for appellants to raise new matters at a late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent—if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against a decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that that is a case of being a judge in one’s own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.

When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised.

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Lord Pannick: I wish to make a suggestion. The noble and learned Lord rightly emphasises that the Secretary of State is the primary decision-maker. However, a way forward might be to give the tribunal some power to overturn a decision of the Secretary of State on a matter of this sort if the Secretary of State is acting unreasonably. That would recognise the primary role of the Secretary of State. What is objectionable is that the Secretary of State must give his or her consent in this context.

6.30 pm

Lord Wallace of Tankerness: My Lords, I appreciate the noble Lord’s comments and help, which I know are made with a view to trying to resolve this matter. I assume the noble Lord means that his suggestion would be preferable to judicial review. The withholding of consent by the Secretary of State would, of course, be challengeable by judicial review but one is well aware of the attendant costs of that and a new application and appeal to the tribunal may well be cheaper and, possibly, quicker.

I must make it very clear that I am not giving any undertaking to bring this back at Third Reading, but I do undertake that it is fair and proper to reflect on the comments that have been made. On that basis, I invite my noble friend to withdraw the amendment.

Baroness Berridge: My Lords, I thank the mainly noble and learned Lords who have spoken, predominantly in support of the amendment. I am obviously disappointed by the Minister’s response to the concerns which have been properly outlined. He cites that it is a clear question of principle that the principal decision-maker is the Secretary of State, but the overriding interest in this matter is the principle of justice. As in the circumstances that I outlined, a matter may remain before the tribunal solely because a barrister makes every effort to avoid being at the hearing and cannot get hold of the Home Office to get a fresh decision made, and yet the tribunal is not allowed to take that conduct into account at all in determining whether the court can take the new matter—which may be impinged on by illness—into account. In these circumstances, one can only imagine the sense of injustice that will be felt, not only by the appellant but by their legal representatives who have gone to every effort to avoid that situation occurring.

I have listened carefully to my noble friend who says that there is no guarantee about bringing this back at Third Reading but that the Government will reflect on this matter. My knowledge of the Companion is not detailed enough for me to understand whether I am entitled to bring it back at Third Reading to determine the matter because I have never heard that phrase before in my three years in your Lordships’ House.

Earl Attlee (Con): My Lords, it would entitle the noble Baroness to bring it back at Third Reading.

Baroness Berridge: I thank my noble friend for his clarification. I also ask the Minister to consider the resources that will have to be put behind presenting

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officers and barristers, who are often very junior. If consent has to be given on the day of the hearing you are going to have to get hold of the Home Office to get instructions on whether to give consent there and then, otherwise we can have yet another thing clogging up the system. I have tried to be generous to the junior barristers: there is nothing worse than getting the papers at 5 pm the night before and trying to do the best you can for your client.

Finally, I am incredibly disappointed because, as a Conservative, I believe in a small state. I never thought that I would have to defend the state trying to dip its toe into interfering with judicial proceedings. I thank noble Lords for their support but, with the clarification that we can, perhaps, bring this matter back at Third Reading, it is with great regret that I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendment 11

Moved by Baroness Smith of Basildon

11: Clause 15, leave out Clause 15

Baroness Smith of Basildon: My Lords, we now return to what many consider one of the most controversial clauses in the Bill. Noble Lords will recall that we had a number of debates on this clause in Committee. We raised our concerns about the principle of removing the right to appeal against an application to refuse a visa. We saw that against the backdrop of what appears to be poor-quality decision-making, when so many appeals succeed.

In the debate last week on the Question for Short Debate introduced by the noble Lord, Lord Steel, the noble Earl, Lord Attlee, referred to the decision-making process as a matter of judgment and said that when a tribunal overturns an original decision by a caseworker that does not mean the original decision is wrong, merely that a different judgment has been made. He was very clear that these are balanced judgments. The noble Lord, Lord Steel, made a helpful point that, on the issue of judgment, the caseworker should be able to go back to the sponsors of an application to double-check its veracity. The noble Earl, Lord Attlee, agreed to write to us on that and I look forward to receiving his reply. The point made by the noble Lord, Lord Steel, contributes to our discussions today. Despite the Minister’s best efforts, both in your Lordships’ House and in writing, and the generosity with their time of the noble Lord, Lord Taylor, and the noble Earl, Lord Attlee, in meeting to discuss this and other issues, he has failed to convince us of the need to remove the right of appeal and replace it with an internal, administrative review. We remain of the view that the efforts and resources would be better employed ensuring accurate, timely initial decisions.

We remain deeply concerned about the clause and have therefore retabled our amendment to delete it from the Bill. We have also tabled Amendment 13 to ensure that appeal rights cannot be abolished until the quality of Home Office decision-making for managed migration is deemed, by the Independent Chief Inspector

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of Borders and Immigration and the Secretary of State, to be efficient, effective and fair. This reinforces my previous point about our priority being the quality and accuracy of judgment on initial decisions.

As your Lordships will know, only three types of decision will remain appealable under this clause: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information, could not be challenged before a tribunal. That even includes a simple mistake being made or not including a document that should have been included. As noble Lords who have been through this process with anybody or advised them on it will know, it is sometimes very difficult to know all the documents that should be included. Instead, the Government plan to set up an administrative review system which will provide a proportionate and less costly mechanism for resolving caseworking errors. We obviously support a process that gives timely, accurate decisions with a facility to swiftly address any errors. However, taken in context, this clause does not do that.

In Committee, we heard about the impact that the clause might have on students, undermining our attractiveness to the best students in the world. We heard about the impact that it would have on children, and noble Lords will also be aware of its impact on businesses. Organisations representing students’ best interests and student bodies fully support Amendment 11 as the preferred way of dealing with this. This may offer reassurance to the noble Lords who have spoken specifically about students.

The system that provides for appeals is even more essential, given that we know how flawed the current system is: the balance of judgment referred to by the noble Earl, Lord Attlee. It is well documented that the department is already struggling to deliver a high-quality service and there are huge casework backlogs. In Committee, I provided some shocking statistics to show how serious the situation is. I do not intend to repeat those today but it is clear from the evidence that there are huge pressures on the service and on those whose job it is to clear the backlog and assess new applications. Yet the Government now propose a new administrative review system with no additional staff. We should not be surprised, or allocate blame to individuals working under such pressure, that so many decisions are overturned on appeal. The latest statistics that I have seen show that 32% of deportation decisions, 49% of managed migration appeals—that is, work and student appeals—and 49% of entry clearance applications were successfully appealed last year.

Although the department had no statistics on why those appeals were granted, since then it has, rightly, undertaken an exercise looking at a sample of 2% of cases, which showed that 60% of appeals allowed are due to casework errors. Extrapolating that figure indicates that almost a third of all appeals allowed are due to casework errors. In Committee, the noble and learned Lord, Lord Wallace, said that these figures had to be looked at,

“from the perspective of the end-to-end immigration system”,

1 Apr 2014 : Column 897

and that the majority of applications are successful. What he meant was that the majority of applications are not appealed against.

However, what matters here is the principle. When so many decisions are found to be flawed and when even the Minister acknowledges, as he puts it,

“historic problems with decision quality”—[

Official Report

, 3/3/14; col. 1195.]—

should we really be trying to remove the current system of appeals and replace it with administrative reviews? I have said before, and I think it still holds, that it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging that inefficiency. I come back to my earlier point, which makes all the more sense to us: the Government should be focusing on improving the efficiency of those initial decisions and making sure that there is little need for appeals in the first place.

As evidence of the appropriateness of the new system of administrative appeals, the Government rely on its use overseas by people who are refused entry clearance. However, as the Government themselves have admitted, not only are these very different decisions with fewer grounds—and so, it is hoped, with fewer mistakes made—but just 21% of original decisions are overturned in that process against the 50% of appeals granted under the current system. Therefore, given the difference in the types of decisions and the fact that less than half the number of overseas administrative reviews are successful compared with appeals, I am not convinced that the Government’s reliance on that as evidence for making the change is sound.

The Government have said time and again that the person reviewing the decision will not be the person making the original decision, but the reviewers will still be a cohort of immigration staff drawn from the initial decision-makers, so it is not an independent process.

In his response to me in Committee, the noble and learned Lord, Lord Wallace, insisted that the administrative review process will be quicker and less costly. He said:

“Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense”.—[Official Report, 3/3/14;. col. 1191.]

That is all very well: who would not want a system that is simple, fast and cheaper? However, do we not also want one that is accurate? If mistakes are being made one way, with people being denied visas when they should have received them, can we be certain that no mistakes are being made in the other direction—that is, people being granted visas when they should not be? People are certainly not going to appeal against that. Therefore, we need a system that gets it right.

I think that our comments and concerns have been taken on board to some extent, particularly with regard to the lack of oversight. The noble and learned Lord, Lord Wallace, quoted the statement of intent in relation to the Bill, saying:

“‘Within a year of the … review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan’”—[Official Report, 3/3/14; col. 1196.]—

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and that the chief inspector could have the power to undertake an inspection off his own bat. A government amendment was tabled to that effect, and another not dissimilar amendment will be coming soon from the noble Baroness, Lady Hamwee. However, that remains after the event. Why not have a review first to see where improvements can be made? Alternatively, we can monitor those improvements before forging ahead and adding another layer of chaos to an already overstretched service.

The Government have also relied on the availability of judicial review as a recourse, despite the change that they are making to judicial review and despite the fact that the impact assessment could not make a proper assessment of the cost. However, this process has the potential to be far more expensive, despite the noble and learned Lord’s comments about it being cheaper and quicker. The Government’s own assessment shows that an extra 5,600 reviews and up to 1,000 judicial reviews could be granted. That would cost more than appeals, and costs can be sought from the other party and damages may be claimed.

The noble and learned Lord, Lord Wallace, said on a number of occasions in our previous debate that he understood the concerns in relation to the clause and he understood the reservations that were expressed about decision-making in immigration cases. Despite that, the Government are still ploughing ahead with a radical reform. We have not seen the evidence for this clause and we do not believe that the evidence is there. It is ill thought-out and unfair, and I hope that, even at this late stage, the Government will be prepared to consider the points that have been made throughout the passage of the Bill. I hope that the Minister can give greater reassurances on this issue than he has been able to provide so far. I beg to move.

6.45 pm

Lord Pannick: My Lords, I have added my name to this amendment to remove Clause 15 from the Bill. A system of internal review is not a substitute for the right of appeal. The right to appeal confers a right to a decision by an independent adjudicator, but it is more than that. There is a public hearing with witnesses and with submissions on both sides. There is a public reasoned decision as a result of the process. I fear that, without independent appeals, the already poor standards of administration in relation to immigration decisions—the noble Baroness, Lady Smith of Basildon, has referred to the lamentable figures—will get even worse.

I do not think that another layer of internal decision-making through an administrative review can possibly be as effective a mechanism for improving standards and ensuring correct decisions as an independent and public appeal process. I welcome, of course, the Government’s decision to invite the Independent Chief Inspector of Borders and Immigration to review the new administrative review process. This will introduce some independent scrutiny of the process, but the chief inspector is not going to assess the substantive merits of individual cases in the way that the tribunal does.

The Government have emphasised that an individual dissatisfied with the internal review process—and there will be many of them—will have legal redress by way

1 Apr 2014 : Column 899

of judicial review. But of course a judicial review, unlike an appeal, is not an assessment of the merits of the case; it is a limited assessment of fair process and of legal errors. In any event, I simply cannot understand any more than the noble Baroness, Lady Smith, why the Government are seeking to push these cases—and there will be many of them—into judicial review when, at the same time, the Lord Chancellor is bringing forward legislative proposals to reduce the number of judicial reviews. Indeed, as the noble and learned Lord, Lord Woolf, explained in speaking to the previous amendment, the whole thrust of reform in recent years has, rightly, been to remove immigration cases from judicial review and to have them decided before tribunals.

The Minister, the noble Lord, Lord Taylor—like other noble Lords, I am very grateful to him for having meetings and correspondence on these issues—has previously emphasised that administrative review is cheap and quick. He is right, but there is nothing to stop the Home Office introducing a quick, cheap and effective process of administrative review. If it were to do so, no doubt it would find that a very large proportion of appeals would become unnecessary. My objection to the clause is the removal of the right to an independent appeal in cases which are not adequately addressed by a process of administrative review. That is why I oppose Clause 15.

The Earl of Clancarty (CB): My Lords, I apologise to the House for not having spoken before on this Bill. I will be brief. I have put my name to this amendment and want to talk about fairness.

As the noble Baroness, Lady Smith, mentioned, we had an excellent debate on immigration last week in the name of the noble Lord, Lord Steel. Much of that debate was full of individual cases. Someone afterwards said that it was a sad debate because of the frustration felt on all sides of the House for those they knew or knew of who suffered difficulties or injustices as a result of the immigration system or regulations as they currently stand, or as likely from mistakes being made. The large proportion of appeals that succeed is testament to that.

Those who work in the area of our domestic legal process, which has developed over centuries, understand well that the system is not perfect, that it can be improved, that mistakes are made and, more than that, that significant safeguards need to be built in that are, crucially, an open aspect of the system. As a society, we are by and large grown-up and realistic enough to accept that. Surely those principles that currently exist in relation to immigration appeals and have now stood for more than four decades should in the same way be, at the very least, preserved and protected. The Government may baulk at the openness of the tribunal system when so many mistakes are clearly revealed to the public, but if the process is taken back in-house—as it were—as an administrative review, we will lose that openness, independence and accountability that we currently have, as my noble friend Lord Pannick said.

The Government wish to replace the current system with one that will be more complicated and inefficient. In addition to limiting the process, it will fragment it

1 Apr 2014 : Column 900

and be desperately unfair for the person concerned because that person would quite rightly—this should be a democratic right—want to hear the entirety of their case presented at a tribunal. I can understand the desire of the Government here. They are under considerable pressure to get immigration right, get a grip on it and put an authoritative stamp on it. However, if that is a spurious authority, which, through lack of independence, institutionalises mistakes—that is what will happen—it will be worthless. Whatever good intentions the Government may have, Clause 15 remains on Report a threat to our fundamental notions of fairness in this country. There is a world of difference between aiming for a perfect system, which is laudable, and attempting to construct in the here and now a system that assumes perfection. If we so significantly limit the right of appeal to tribunals, we will surely set off down the latter, dangerous and misguided, road.

Baroness Hamwee: My Lords, I was not sure whether to speak yet; I was looking for a Bishop. Amendment 14 in this group is in my name and that of my noble friend Lord Avebury. I have been torn over this issue. Of course, the lawyer in me wants to see access to the courts or tribunals but the pragmatist in me says, “Get it right first time”, especially when it is something where arguably the person involved does not start with having rights. I distinguish between human rights interests, family interests and, at the other end of the spectrum, perhaps permission to come and work in a different country. At issue here is a very wide range of types of decision. Also, of course, the pragmatist says, “Find ways to improve the process to get it right”.

I have to assume that the Secretary of State is satisfied on the basis of the current out-of-country process that what is proposed will be “efficient”, “effective” and “fair”—in the words of one of the amendments. I hope that effectiveness always means fairness. I do not know that one can become satisfied that the process is efficient, effective and fair on the issue raised by the possibility of shadow working and the two systems working in parallel. I know that there are different views about that. Frankly, I doubt that it is practicable. At the previous stage, I raised the issue of reviews of procedures and—particularly important to me —independent oversight and reports to Parliament. I welcome government Amendment 12. Could my noble friend confirm, because it does not quite say this, that what is intended is a report on the first year? It says that, “Before the end of” a year the Secretary of State will commission a review.

My Amendment 14 would introduce a two-stage process, the second of which would be the chief inspector reviewing the first year of operation, and the first of which would be an opportunity for Parliament to consider the procedures after the Government have consulted on them. I am grateful to my noble friend for a letter that I received following Committee and which was copied to other noble Lords. I hope that this will be a useful opportunity for him to explain from the Dispatch Box the Government’s proposals for consultation on the proposed rules—a targeted consultation, as I understand it. There might be, if you like, a pre-consultation of noble Lords as to who might be involved in that process. I am sure we would all have ideas as to who could usefully contribute.

1 Apr 2014 : Column 901

Since Committee, I have seen the information given to those who seek an administrative review out of country under the current procedure. I had been concerned about how representations could be made to the reviewer and what representations could be made. I can infer that from the current information but I am sure that there is scope for spelling it out more clearly. That is a matter for the practitioners, really. I was also relieved to see information on something that had popped into my head and bothered me a lot: whether there would be a charge for an administrative review. I see that that is not the case. That reminded me that this is another reason for the Home Office getting it right first time, as it will not be able to get any income from that administrative review. As it were, it funds it—rightly—from its internal resources.

Lord Wallace of Tankerness: My Lords, as the noble Baroness, Lady Smith, indicated, we debated this matter at some length in Committee. We will necessarily go over some of that ground again but I appreciate the opportunity to do so and to inform the House why we believe that it is helpful and a positive development that we should move to this system of administrative review.

Obviously, the noble Baroness’s Amendment 11 would remove Clause 15 from the Bill. In doing so, it would retain the current appeals system, which we believe is too complex and does not provide the most appropriate and effective remedy in each case against refusal decisions. I understand the reservations that have been expressed here—we rehearsed a number of the issues in Committee—about decision quality in immigration cases. First, it is again important that those concerns are seen in context. As I said—and as was once said back to me—the great majority of decisions are not refused in error. The majority of applications are successful. The noble Baroness quoted me on that. Of decisions taken in the United Kingdom, only 10% were refused in 2012. Therefore, when the majority are successful, it is not about an absence of appeals. The noble Baroness asked if some of these decisions had been wrong, too. I suspect we will never know because people tend not to appeal against decisions when they have been successful. Some 51% of that 10% that were refused in 2012 succeeded on appeal. Therefore, 5% of the total decisions taken succeeded on appeal. Of that 5% of decisions, 60% succeeded because an error was made. By my calculation, we are down to 3% of all decisions in managed immigration cases being attributable to an error.

We believe that retaining the current system, as would be the consequence of the noble Baroness’s amendment, would not improve decision quality. It would mean that people continued to wait longer and incur more expense for errors to be corrected than under the system established by Clause 15. Under Clause 15, where a claim based on a fundamental right is refused—I think we heard about some of those under the previous amendment—it can be appealed and the fundamental rights are set out in the Bill. It is right that a full-merits appeal should be available for these cases. Where the claim is not based on fundamental rights, we can indeed show that 60% of cases that succeed on appeal do so because of a working error. It is also worth reflecting that the kinds of cases we tend

1 Apr 2014 : Column 902

to deal with are those that are a matter not of judgment but of the application of objective rules. If the rules are met, leave is granted. If they are not met, leave is refused. That type of decision is well amenable to administrative review. As the noble Baroness said, the process will be quicker and cheaper than an appeal.

7 pm

In the statement of intent, the Home Office sets out that it would have an expectation of decisions being taken within 28 days of an administrative review being sought. Paragraph 8 of the statement of intent refers to,

“28 days to complete an administrative review. This is faster than the current average 12 weeks (published statistics for first quarter 2013) it takes for a managed migration appeal to be heard”.

Before coming into the Chamber today, I was advised that management migration appeals to the tribunal took an average of 19 weeks to be resolved in the period from July to September 2013. I have no doubt that I have heard on numerous occasions in your Lordships’ House that justice delayed is justice denied. If some of these 60% are dealt with in 28 days rather than 19 weeks, that is very much in the interests of the applicants.

The noble Baroness anticipated what I would say with regard to the fact that administrative review already operates overseas and we believe that it works. From April to December 2013, 93% of these administrative reviews were completed within 28 days and 21% of administrative reviews requested resulted in the original decision being overturned. It has not been said today but I think it has been said in previous debates: there are those who think that there will be apprehension over people within the Home Office overturning a decision made by someone else within the Home Office. That simply has not been the case. Just over one in five resulted in the original decision being overturned. I believe I have said before that I am never quite sure whether it is better if the number is higher or lower. If it is higher, it might be said that people are less afraid to overturn their colleagues’ decisions or perhaps that it is inefficient, whereas if the number is lower it might be said that they are afraid to challenge their colleagues. However, it may just be that more often they are getting it right.

Administrative review will be central to improvement in decision-making quality.

Lord Avebury: The figures that the noble and learned Lord has just given are interesting. He said that 21% of administrative reviews uphold the appeal, whereas earlier he said that 51% of those reviews succeeded on appeal in 2012. Does that not illustrate the anxiety everyone feels that when an appeal system is replaced with an administrative review, the rate of success goes down not for any objective reason but just because the administrative review is less favourable to the applicant?

Lord Wallace of Tankerness: My Lords, I am almost tempted to say that you are damned if you do and damned if you do not. That 51% included those cases where there was administrative error. If one wishes to drive to improve the quality of decision-making, inevitably the number of successful appeals will go down.

1 Apr 2014 : Column 903

In Committee, concern was expressed about the opportunities for scrutiny of the Immigration Rules. I am pleased to confirm that we are committing to publishing draft rules no later than the Summer Recess. I hope that that reassures my noble friend Lady Hamwee about what I have said in my letter to her. I am happy to repeat that those rules will be the subject of a targeted consultation with key interested parties, including the Immigration Law Practitioners’ Association and Universities UK. We certainly are open to discussions with noble Lords and organisations to which noble Lords consider this consultation should be addressed. The aim of the consultation will be to ensure that all relevant views are taken into consideration before the rules are finalised. The consultation will offer an opportunity for the rules to be scrutinised and potentially amended before they are laid before Parliament in accordance with Section 3(2) of the Immigration Act 1971. Clause 15 creates a better process for all concerned—applicants, decision-makers and the court system. It will help to address the legitimate concerns raised about decision quality.

Amendment 13, which stands in the name of the noble Baroness, Lady Smith, would impose three conditions that would need to be met before the appeals provisions in Clause 15 came into force. The proposed sunrise clause would require: that the Chief Inspector of Borders and Immigration must first report on decision-making for entry clearance and managed migration; that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair; and that the order to commence Clause 15 must be laid before and approved by both Houses. My noble friend Lady Hamwee raised the possibility that, to be able to do that, we might need to have a shadow operation, which probably would be an administrative nightmare.

I submit that we already have reports from the chief inspector on decision-making in entry clearance and managed migration. In 2013, he reported on investor and entrepreneur applications, concluding that 91% of decisions on investor applications were reasonable. That report recommended that the overseas approach of sharing administrative review outcomes to improve decision quality should be adopted in-country. That recommendation of an approach recommended by the chief inspector has informed the changes which this Bill seeks to implement through Clause 15.

The inspection of entry clearance decision-making in Warsaw in December 2013 of out-of-country administrative reviews concluded that the service was efficient and consistently meeting service standards for completing decisions. In 88% of cases reviewed, the report concluded that the right decision had been reached. We accept that this report made five recommendations for improvement. We have accepted all of these either in whole or in part.

I assure your Lordships that the Home Office takes the chief inspector’s inspections and reports seriously. A dedicated team manages the implementation of his recommendations. In his spot-checking report of August 2013, the chief inspector considered the progress that had been made against recommendations from three earlier inspections and was pleased to see evidence that

1 Apr 2014 : Column 904

the Home Office was acting upon his recommendations. We already have evidence from the chief inspector who has looked at the administrative review procedures that are applied at present for out-of-country cases of managed migration. He appears to confirm that, in the cases that were reviewed, the right decisions had been reached. As I have said, in Warsaw that was in 88% of cases.

However, we recognise the concerns that prompted Amendment 13. Therefore, we have brought forward a government amendment which takes a different but effective approach to address those concerns. Amendment 12 in the name of my noble friend Lord Taylor imposes a specific obligation on the Secretary of State to secure an independent review of administrative review. It looks forward and will review new processes. The new clause requires the Secretary of State to commission the independent chief inspector within a year of Clause 15 being commenced to prepare a report on administrative review.

My noble friend Lady Hamwee asked for confirmation that it was intended that the report would be on the first year although commissioned ahead of the first year. As I have said, the report will be commissioned within 12 months of administrative review being implemented. The Secretary of State will ask the chief inspector to complete the report within the first 12 months of the operation of administrative review. In timing the commissioning of the report, we want to strike a balance between a desire for an early report on how administrative review is working and the need to let the process operate for a period before a meaningful report can be prepared. It is therefore intended that the Secretary of State asks the chief inspector to undertake his report once administrative review has been in operation for six months and to complete his report within the first year of the operation of administrative review. The chief inspector should build flexibility into his inspection plans to allow such specific requests.

The new clause requires that the Secretary of State commissions that report and the report must address specific concerns. If noble Lords look at the terms of the amendment, they will note that the specific concerns that the chief inspector is being asked to address are ones that quite fairly reflect some of those raised in your Lordships’ House in Committee—namely, the effectiveness in identifying and correcting case working errors and the independence of the person conducting the administrative review in terms of their separation from the original decision-maker.

Baroness Manzoor (LD): Will the chief inspector look at the substantive elements of the case rather than just the procedural review of the case and whether that has been effective? Will he also assess the merits of the case in the samples that he takes?

Lord Wallace of Tankerness: My Lords, I mentioned to my noble friend the report on out-of-country cases in Warsaw in December last year which concluded that in 88% of the cases reviewed the right decision had been reached. You can do that only if you actually look at the subject matter. Therefore, I would fully expect that the chief inspector, in undertaking his report, would have to be able to give some indication

1 Apr 2014 : Column 905

as to whether there was greater efficiency and greater accuracy in decision-making. You would have to look at sample cases to see whether the right decisions had been reached.

Amendment 14, in the names of my noble friends, requires the Government to consult on the immigration rules for administrative review. As I have already indicated, the Government will undertake a targeted consultation on the immigration rules establishing administrative review before those rules are laid before Parliament. It is not necessary to place an obligation to consult on the face of the Bill as the Government have already committed to doing so. The proposed new clause also seeks to ensure that administrative review is the subject of an early inspection and report by the Independent Chief Inspector of Borders and Immigration. As my noble friend Lady Hamwee acknowledged, Amendment 12, tabled by the Government, requires the Secretary of State to commission such a report from the chief inspector.

My noble friend raised the out-of-country administrative review note that she received. She saw the same point that I had noticed, which indicated that out-of-country reviews are free. I then noted that the statement of intent, which was published along with the Bill, indicated that there would be a fee of £80. I have queried why that is the case. I understand that a separate charge for an administrative review is incorporated into the visa application charge. To do that for in-country reviews would require increasing visa charges. I rather suspect, given what has been said in a number of other debates, not least with regard to students, that that would not be the most popular course to go down. The review is free, but the cost is already incorporated within the visa charge.

I believe that we have accepted a recommendation emanating from the chief inspector about how administrative review can work. I believe that it will work because we are following up on recommendations that have been made about how these decisions can be made more efficiently. Where we have heard evidence of administrative review working for out-of-country applications, there has been a significant improvement over the 60% of errors that were identified in that period with regard to in-country appeals. Therefore, particularly with regard to the huge difference between 28 days and 19 weeks—I suspect overall that it will be cheaper if one does not have to engage learned counsel—we are proposing something here that will be of benefit not only to applicants but to the general administrative procedure as a whole.

Therefore—I suspect without any success—I ask the noble Baroness to withdraw her amendment and to recognise that the Government have listened to what was said in many cases in Committee. We are putting on the face of the Bill an obligation on the Secretary of State to commission a report from the chief inspector and particularly to have regard to the specific concerns raised in Committee. I therefore hope that she will withdraw her amendment.

7.15 pm

Baroness Smith of Basildon: My Lords, I am grateful to the Minister for his full explanation. He is right: there has been some movement to address the concerns

1 Apr 2014 : Column 906

that we raised in Committee, and I welcome the Government’s new clause. I must admit that he has gone further tonight than I thought when I read the new clause when he said in response to the noble Baroness that the chief inspector would look at the substantive issues and not just those such as the effectiveness mentioned in the amendment. That is certainly welcome. I wonder whether the inspector will be able to deal with possibly thousands of cases every year.

Although the Minister says that the majority of applications are successful, it remains that a third of all appeals succeed due to casework errors. I take his point about speed. It seems that the Government are more concerned with the cost and speed of decision-making than with accuracy and fairness. I would point to the system at the Department for Work and Pensions, where there is a process for administrative review but that does not prevent an appeal taking place as well if that remains the decision of the person who was refused. I have already said that I think the Government’s reliance on the overseas system of administrative review is flawed for a number of reasons. I am also surprised that the Minister seems to be at odds with the noble Earl, Lord Attlee, who referred to case working decisions being a judgment decision on a balanced decision, yet the Minister referred to it as following rules. We seem to be being informed about two different systems.

As much as I welcome the comments that the Minister has made—and I am grateful to the noble Lord, Lord Pannick, the noble Earl, Lord Clancarty, and the right reverend Prelate the Bishop of Leicester, who is unable to be with this us at the moment—I feel that the Minister has not really addressed the reasons why the Government are removing a fundamental right of appeal for judicial review. The explanation and the evidence were not there and I feel that I have to test the opinion of the House on this issue.

7.16 pm

Division on Amendment 11

Contents 164; Not-Contents 205.

Amendment 11 disagreed.

Division No.  2


Aberdare, L.

Adams of Craigielea, B.

Adonis, L.

Ahmed, L.

Alli, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Best, L.

Billingham, B.

Blackstone, B.

Boothroyd, B.

Borrie, L.

Bradley, L.

Bragg, L.

Brennan, L.

Brookman, L.

Browne of Ladyton, L.

Campbell-Savours, L.

Carter of Coles, L.

Clancarty, E.

Clark of Windermere, L.

Clinton-Davis, L.

Colville of Culross, V.

Corston, B.

Coussins, B.

Craigavon, V.

Crawley, B.

Davies of Coity, L.

Davies of Oldham, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

1 Apr 2014 : Column 907

Eames, L.

Eatwell, L.

Elder, L.

Farrington of Ribbleton, B.

Filkin, L.

Gale, B.

Golding, B.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Greenway, L.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kirkhill, L.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Leicester, Bp.

Liddell of Coatdyke, B.

Lipsey, L.

Lister of Burtersett, B.

Listowel, E.

Low of Dalston, L.

Lytton, E.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

McKenzie of Luton, L.

Mallalieu, B.

Mar, C.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Moonie, L.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Handsworth, L.

Nye, B.

O'Loan, B.

O'Neill of Clackmannan, L.

Palmer, L.

Pannick, L.

Patel, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Ponsonby of Shulbrede, L.

Prashar, B.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Ramsbotham, L.

Rendell of Babergh, B.

Richard, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

Sandwich, E.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Stair, E.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tunnicliffe, L. [Teller]

Turner of Camden, B.

Uddin, B.

Walton of Detchant, L.

Warner, L.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wilkins, B.

Wills, L.

Winston, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Norwood Green, L.


Addington, L.

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Brabazon of Tara, L.

Bridgeman, V.

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Brinton, B.

Brougham and Vaux, L.

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Caithness, E.

Carrington of Fulham, L.

Cathcart, E.

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Denham, L.

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Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dundee, E.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fink, L.

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Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

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Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glendonbrook, L.

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Grender, B.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Hooper, B.

Horam, L.

Howarth of Breckland, B.

Howe, E.

Howe of Aberavon, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

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Jolly, B.

Jopling, L.

Kakkar, L.

King of Bridgwater, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lucas, L.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

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Maddock, B.

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Newlove, B.

Noakes, B.

Northbrook, L.

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Norton of Louth, L.

O'Cathain, B.

O'Neill of Bengarve, B.

Paddick, L.

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Scott of Needham Market, B.

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Sherbourne of Didsbury, L.

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Walmsley, B.

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Williams of Trafford, B.

Wrigglesworth, L.

Younger of Leckie, V.

7.27 pm

Amendment 12

Moved by Lord Taylor of Holbeach

12: After Clause 15, insert the following new Clause—

“Report by Chief Inspector on administrative review

(1) Before the end of the period of 12 months beginning on the day on which section 15 comes into force, the Secretary of State must commission from the Chief Inspector a report that addresses the following matters—

(a) the effectiveness of administrative review in identifying case working errors;

(b) the effectiveness of administrative review in correcting case working errors;

(c) the independence of persons conducting administrative review (in terms of their separation from the original decision-maker).

(2) On completion of the report, the Chief Inspector must send it to the Secretary of State.

(3) The Secretary of State must lay before Parliament a copy of the report received under subsection (2).

(4) In this section—

“administrative review” means review conducted under the immigration rules;

“case working error” has the meaning given in the immigration rules;

the “Chief Inspector” means the Chief Inspector established under section 48 of the UK Borders Act 2007;

“immigration rules” has the same meaning as in the Immigration Act 1971.”

Amendment 12 agreed.

Amendments 13 and 14 not moved.

Consideration on Report adjourned until not before 8.27 pm.

Health: Innovative Medicine

Question for Short Debate

7.28 pm

Asked by Baroness Thomas of Winchester

To ask Her Majesty’s Government what steps they are taking to ensure early access to innovative medicine for life-threatening conditions.

1 Apr 2014 : Column 910

Baroness Thomas of Winchester (LD): My Lords, I am grateful to have attracted such a stellar cast for the important matters that we will be talking about in this short debate this evening. I hope that it might build on the interesting debate on 13 March on regenerative medicine, in which my noble friend Lord Willis of Knaresborough said:

“The King’s Fund estimates that by 2070, 20% of the UK’s GDP will be spent managing long-term conditions”.—[Official Report, 13/3/14; col. 1944.]

Such a situation would be unsustainable and unaffordable, and we must ensure that new treatments and technologies are found so that the quality of life of those with long-term conditions is as good as possible.

The very next day after that debate last month, the Government announced the early access to medicines scheme, which offers a way by which unlicensed medicines can be made available to patients before approval of a licence to benefit public health. The scheme has been warmly welcomed by many of us who are involved with rare-disease patient groups and their families. Indeed, with the support of the Muscular Dystrophy Campaign, the All-Party Parliamentary Group for Muscular Dystrophy, in its report last year, highlighted the need for such a scheme. Ground-breaking research for potential treatments for rare diseases is set to grow and this scheme should ensure that patients will, in future, be able to get the treatments that they need at a much earlier stage of the process.

Professor Dame Kay Davies of the department of physiology, anatomy and genetics at Oxford University is leading the development of a potential treatment for Duchenne muscular dystrophy, which is currently in early clinical trials. She said:

“The introduction of a ‘fast-track’ system offers an exciting opportunity to intervene in a safe way and ensure effective medicines reach the people who need them as early as possible. It is good news for families affected by Duchenne muscular dystrophy, who are deeply anxious about the speed at which future potential therapies will reach their children. Several potential treatments are in clinical trials and further laboratory research projects are underway—the prospect of accelerating the progress of approaches that show particular promise is a very welcome one”.

This view is supported by many families of boys with Duchenne, who say that every second counts and time is not a luxury that they have.

Professor Dame Sally Davies, the Chief Medical Officer, said that the scheme would allow drug-makers to demonstrate the value of unlicensed medicines, improving their chances of eventual approval by regulators and NICE. Obviously, allowing patients early access to medicines is not without some risks, which is why the Government were right to be clear that sufficient data must be available to demonstrate safety before a drug can be considered under the early access scheme.

The Minister will know that I was bound to mention the dismay of many of us in this field at the fact that AGNSS—the Advisory Group for National Specialised Services—was being disbanded, along with NHS Specialised Services. AGNSS was responsible for the appraisal of very rare drugs, while NHS Specialised Services had responsibility for the commissioning of services for very rare diseases, as well as a ring-fenced fund to subsidise treatments for the drugs to treat these diseases. AGNSS’s duties have transferred to

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NICE—the National Institute for Health and Care Excellence—while NHS England has taken over the NHS Specialised Services role. However, little clarity was given on what the new appraisal and commissioning processes will look like and there was widespread concern that NICE’s “cost per quality-adjusted life year” approach to the appraising of new drugs will effectively exclude, on the grounds of high costs, treatments for small patient populations.

NICE has now established its highly specialised technology programme, responsible for the appraisal of orphan drugs. Unfortunately, early indications of its outlook on high-cost treatments do not appear promising, although it is still at an interim stage. A current example is the approval that NICE is considering for Soliris, a treatment for atypical haemolytic uraemic syndrome, a rare blood disorder that may be inherited. Before Soliris, there was no treatment available to prevent death or organ damage and up to 25% of patients would die following their first attack. Soliris was recommended for approval by AGNSS, based on its effectiveness in halting the progress of the disease and its low cost per quality-adjusted life year. It was assumed that, as a result of this recommendation, the drug would be available to patients from October 2012. However, in January 2013 the Government announced that Soliris would be subjected to a second assessment, under the new system for specialised services within NICE, and Alexion Pharmaceuticals, which developed the drug, has been asked to explain the high cost of Soliris.

NICE has also asked for advice from NHS England on what considerations relating to the management of its specialised commissioning budget it considers should be taken into account in formulating a recommendation. I hope that the fears that many people voiced when AGNSS was disbanded that treatments for rare disorders might be denied on grounds of high costs are not going to be realised. After all, patients with rare and life-threatening conditions deserve access to treatments just as much as those with more prevalent conditions.

The next matter that I wish to raise is the clinical trials process, which must be speeded up. One way of achieving this could be to authorise a process of study approval whereby various stages of clinical trials can be conducted in parallel with one another. This would avoid a lengthy sequential process. For example, in the case of exon-skipping technologies for Duchenne, each drug or molecular patch will treat only certain specific mutations causing the condition and, under current procedures, future molecular patches would have to go through the same lengthy requirements. Will my noble friend the Minister urge the Medicines and Healthcare products Regulatory Agency and NHS England to consider such a study approval process?

Another important consideration is the clinical trial infrastructure, including additional specialist centres to enable more patients to participate in clinical trials. During the APPG inquiry, we were concerned to hear about the cutting of administrative support by some hospital trusts. It is a false economy to cut back on this infrastructure, such as patient registries. At present, many patient registries are charity-funded, with little or no long-term funding security. With limited back-office

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support, some centres are finding that there is no one available to input patient data. Consequently, such cuts can seriously damage the ability of centres to carry out large-scale clinical trials. Will my noble friend say what steps the Government are taking to ensure that centres and clinics across the UK have the resources required to manage patient registries and for clinical trials to be carried out?

Finally, in last month’s debate my noble friend said that consideration of the Health Research Authority’s business case to bring together and streamline NHS approvals and local ethics approvals should be completed shortly. Will he update us on that? Will he also endorse the need to streamline NHS approvals so that unnecessary regulation and delays are avoided? We must always look forward with great optimism in the search for treatments for intractable conditions. The early access to medicines scheme is a very welcome initiative, which must not be allowed to fail because of bureaucratic obstacles in its path.

Baroness Jolly (LD): I remind noble Lords that we are tight for time this evening. Six minutes is the limit and, as soon as the clock reaches six, your time is up.

7.38 pm

Lord Kakkar (CB): My Lords, I congratulate the noble Baroness, Lady Thomas of Winchester, on securing this important debate. In so doing, I declare my own interests in healthcare, in particular that I am chairman of UCLPartners and the UK business ambassador for healthcare and life sciences. I, too, congratulate Her Majesty’s Government on their early access scheme, recently announced, which is important for patients and healthcare professionals and in securing the ecosystem around the delivery of life sciences in our country. That is vital not only for the delivery of innovative healthcare, advancing clinical outcomes and improving the ability of our patients to benefit from advances in medical research, but because the life sciences sector in our country plays such an important role in the economy more broadly.

As we have heard from the noble Baroness, Lady Thomas, the scheme is fundamentally driven to ensure that innovative medicines that have undergone a degree of thorough scrutiny by way of clinical evaluation could be made available to patients with life-threatening and debilitating conditions before they would normally have received their full licensing, which is very important. I ask the noble Earl how Her Majesty’s Government plan to ensure equity of access to the scheme, bearing in mind that these innovative products will not, at the stage when they will become available as part of the scheme, have had approval for cost-effectiveness through the processes of the National Institute for Health and Care Excellence. Therefore, it is important that careful attention is paid to ensuring that, if those innovative medicines are to be provided as part of a specialist commissioning infrastructure within NHS England, it is done in such a way that patients throughout the NHS in England can avail themselves of those important innovations, because they will be some of the most vulnerable patients whom we see with life-threatening conditions or chronic disabling and debilitating conditions.

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In that regard, I wonder whether the noble Earl can give a view on the potential role that academic health science networks, such as UCLPartners, might play in promoting access to innovative therapies as part of the early access scheme. As part of their original designation and licence obligations, the academic health science networks had to give undertakings with regard to the diffusion at scale of innovation across the populations for which they have responsibility. Do Her Majesty’s Government see a role for the academic health science networks in the early access scheme with regard to those diffusion of innovation obligations? If so, does the noble Earl believe that the arrangements for funding the academic health science networks, bearing in mind that the scheme will run for a number of years, are sufficiently secure?

Beyond the important contributions that Her Majesty’s Government have driven over the past four years in innovation in healthcare, through the development of the academic health science centres and networks and through the promotion of the National Institute for Health Research and its translational medicine research elements, which are vital to the early access scheme by encouraging industry and other biotechnology partners to work with the institute to undertake the research evaluation that will bring those innovative medicines more quickly to bear in the management of patients in the most desperate of circumstances, there is also the important question of the legal framework within which innovation can take place. That relates to innovation not across the system but to an individual clinician innovating for an individual patient and, therefore, the culture of innovation in our healthcare system.

The noble Lord, Lord Saatchi, recently promoted the Medical Innovation Bill, which is intended to address the important question of whether a legal impediment to innovation resulting from an accumulation of case law has changed the way in which clinical practice is discharged. I know that on 22 November 2013 the Secretary of State recognised, in a Written Statement, that there may well indeed be unintended consequences of the way in which case law is now interpreted that will stifle innovation with regard to the individual clinician providing care for the individual patient. As a result, Her Majesty’s Government are currently undertaking a broad consultation on the question of whether a Bill to help to clarify those ambiguities in law is necessary. Can the noble Earl provide some further insights into how the consultation is proceeding and where Her Majesty’s Government’s thinking is with regard not only to dealing—as they have done effectively—with the systems issues about innovation at scale and pace for large populations, but to the ability of individual clinicians to practise innovative care in a responsible and structured framework for the individual patient in front of them, often making use not only of personalised medicine and the revolutions in genomic medicine that will drive individual decision-making for patients, but also of this impressive early access scheme?

7.44 pm

Lord Colwyn (Con): My Lords, in the late 1970s and early 1980s, I regularly annoyed House of Lords Health Ministers from both sides of the House with what

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I described as innovative treatments for common diseases which had not completed the necessary trials and approvals, but which were harmless and cheap. Those treatments tended to involve homoeopathy, acupuncture, herbal medicine and traditional Chinese medicine. At the time, I was president of the Natural Medicines Society, and I declare my interest now as president of the All-Party Parliamentary Group for Integrated Health Care.

Recently, there have been many instances of the need to try new drugs which have not completed their normal phase trials and testing but might be able to be used on patients who have few remaining treatment options. My noble friend will forgive me if I resurrect some of those ideas, which were rejected and never used to treat patients in the UK. The Innovative Medicines Initiative will pave the way for new vaccines, medicines and treatments to tackle major health challenges, but many of the challenges have been there for many years. Artherosclerosis is by far the largest health problem affecting the western world. Attitudes to its prevention and to the ability to reverse its effects have ranged from the extremes of those who feel that it is completely preventable and reversible to those who regard it as an inevitable ageing process for which there is no remedy.

Lower limb peripheral arterial disease can affect about 9% of the population, and the incidence increases with age. About 20% of people aged over 60 have some degree of peripheral arterial disease. Incidence is higher in people who smoke, people with diabetes and people with coronary artery disease. Peripheral arterial disease occurs when the vascular system becomes obstructed due to atherosclerosis. The obstruction leads to gradual tissue death in the lower legs because of the lack of blood, which carries vital nutrients and oxygen. Critical limb ischaemia is characterised by severely diminished circulation, ulceration, tissue loss and gangrene. Amputation is a major risk for those patients, particularly those who have diabetes.

I invite my noble friend to revisit the techniques of oxidative therapy, first reported in the Lancet in 1920. There are many theories about the different functions of hydrogen peroxide in the body, and a great deal of scientific material supports almost every one. At one time in my dental career and as president of the Arterial Health Foundation, I tried to persuade the Government to examine the claims of the practitioners of EDTA chelation therapy. I have some personal experience of that technique. Over a period of six months at a clinic in Eindhoven, I followed the treatment plans of several patients who were unable to walk more than a few paces and had all been recommended for amputation. After two months, they were walking and then were able to run. Seeing those patients improve is something that I shall never forget.

Chelation therapy removes heavy metals from the arteries and is able to improve the blood flow to all areas and so preserve health and normal function by re-establishing peripheral circulation—supplying oxygen and essential nutrients. Ethylene diamine tetra acetic acid is introduced into the blood by intravenous drip and binds itself to heavy metals, such as lead, mercury, cadmium and other minerals, including calcium, and is excreted normally via the kidneys.

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For many years, physicians in the US and Europe have used the chelating agent EDTA as an anti-atherosclerosis drug. A large anecdotal history has grown up supporting its value. In the 1950s and 1960s, a number of uncontrolled trials reported favourably on its value in cardiovascular disease, ischaemic heart disease and peripheral vascular disease. However, none of the trials was properly controlled by the double-blind procedure and thus the use of EDTA has not gained acceptance among the majority of physicians.

A patient might need 20 infusion visits of three hours. The EDTA solution travels through every blood vessel in the body, treating every vessel from the aorta to the smallest capillary. Chelation therapy was first developed in the US, and has been approved by the FDA as a way to remove toxic metals such as lead and mercury from the bloodstream, but no such approval has been granted for its use in unclogging the arteries of heart patients. Its use in that area remains controversial.

Intravenous EDTA chelation therapy, properly administered, is a safe, economical and effective treatment for the symptoms of atherosclerosis caused by free radical pathology. There is insufficient time to examine the technique in more detail, but I believe that it is a treatment that should be carefully considered before resorting to amputation.

About 20 years ago, I had a course of treatment myself, partially to eliminate small deposits of mercury, which tended to build up in dental practitioners, and partially to demonstrate to the Secretary of State for Health at the time—my noble friend Lady Bottomley—that the treatment was harmless. The heavy metals were removed and I survived the treatment. If I was told that I needed to have a leg removed, I think that I would seriously consider chelation as a first line of defence.

7.49 pm

Baroness Masham of Ilton (CB): My Lords, I thank the Baroness, Lady Thomas of Winchester, for obtaining this debate and I congratulate her on all she does for people with muscular dystrophy. I also congratulate the All-Party Group on Muscular Dystrophy on its report on access to high-cost drugs for rare diseases. I know first-hand how desperate it can be when someone one knows and loves needs a drug that may not be registered but may help them in a deteriorating situation. To quote from the report:

“To ensure that patients with rare diseases are not denied vital and cost-effective treatments we need to see the NHS develop a new model with regulators and the industry”.

There are many people across the country who have rare conditions and need specialist treatment. There are many parliamentary groups dealing with particular diseases, illnesses and disabilities. The message I get from them all is that the delivery of services is patchy across the country. The message that I get from the Government is that services should be dealt with locally. However, the National Health Service should at least have national minimum standards and the guidelines set out by NICE should be adhered to.

I agree with the statement in the report that the Government should establish a ring-fenced fund for rare disease drugs to ensure that patients affected by

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rare diseases are not denied treatment. Is there not such a fund in Scotland? In England, the cancer drugs fund has been of great help to people with rare cancers. There was also a recommendation about ensuring that NHS England provides specialist centres equipped with an appropriate range of health professionals to deliver treatments. If patients do not get the correct diagnosis, treatment and advice, their condition nearly always gets worse and there is so much suffering and anguish.

I am always concerned when I hear it said that people with long-term conditions should be treated at home. They need the very best diagnosis and treatment, and to be taught how to manage their conditions by experts before going home. All interested parties should work in communication and co-operation to help the patients. Some of these conditions mean a shortened life, therefore patients should have the best quality possible for that life—and that means expert treatment and advice, and ongoing support when needed.

I stress how important specialist nurses are to these people who have rare conditions or complicated diseases. They are a vital support to consultants and patients, as well as teaching patients’ families and general nurses how best to look after those with special needs. They are the link between hospital and the community, so not to have them is false economy. I met a splendid group of specialist nurses last week, who told me that morale among nurses is not good. This is bad for patients. One of the reasons, they told me, was the shocking situation which happened at Mid Staffordshire NHS Foundation Trust and other tragic events. Yet another recent incident was highlighted over the weekend, but I can only praise the specialist nurses I have met, who are dedicated to helping their patients achieve the best possible life, often in very challenging situations. I hope that the Minister will agree that specialist nurses are essential.

There are so many rare conditions which need research that can give hope for the future. Approaches which undervalue new treatments can impede innovation, distort therapeutic decision-making and undermine global welfare. We need progress, not limitations.

7.54 pm

Baroness Grey-Thompson (CB): My Lords, I thank the noble Baroness, Lady Thomas of Winchester, for tabling this debate. This is not a subject which I have previously spoken about in your Lordships’ Chamber, but a chance conversation in the corridor encouraged me to listen, and then to speak.

The subject of what medication should be given to patients with life-threatening conditions to ensure good-quality life is very interesting to me as, linking it to other work that I am doing on disability rights and quality of life, it has helped me to further examine the relationship between the public’s view of being sick or ill and being disabled. All too often the impression is given that if you are disabled, you must probably also be ill and therefore have a high cost attached to you. It is important to understand that the two are not synonymous.

I am interested in this subject because I have a number of friends who have been involved in various drugs trials and, while I do not require any medication,

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in my time as a wheelchair user I have certainly been offered experimental surgery to “fix” what were seen as my problems. This is of course not related to the issue of medication. However, one of the procedures that I was offered was a leg-lengthening operation when I was already paralysed; it would have made no difference to whether I could walk or not, or my ability to use callipers. Then years later, it was revealed on a television programme as an innovative procedure.

Concerning “life-threatening conditions”, I, like many others, would like to see further clarification on what that definition involves. I would also like to see what other options could be explored, such as developing physical literacy, physical health and healthy lifestyles. I know that this happens in many cases but I would like to be assured that this is the norm because, while medication is part of the answer, it is not the only answer. Many of my friends experience quite a lot of difficulties with urinary tract infections, but I have not had one of those since I was 13. I think that is because of my training and being active, and all the other things that are part of a healthy lifestyle.

I was interested to read the documentation provided in the Library, in which the Health Secretary, Jeremy Hunt, said:

“Making Britain the best place in the world for science, research and development is a central part of our long term economic plan”.

He added:

“Most people are only too happy to altruistically volunteer for medical research if it helps save lives”.

Encouraging investment in the UK is important in the light of some pharmaceutical companies choosing to reconsider where they are based and what research they are involved in. It is a useful aspiration to have, but we must of course be conscious of the balance between companies funding research for ultimate profit and giving people positive options.

In researching for this debate, I found many cases where hundreds of millions of pounds were spent on trials that may or may not be successful. My husband is a research chemist, so I have a little understanding of the cost of developing and testing new products, although in his case it is high-temperature chain oils. I also think that many of us who are not medics or involved in that profession often do not understand the cost of some of these medications. I was in the USA recently with my family when my daughter developed an ear infection. A trip to see a nurse practitioner was $100; it was another $100 to see a doctor and a very small bottle of branded medication was $400.

I will also briefly refer back to a Question asked by the noble Lord, Lord Clement-Jones, which is listed in Hansard as HL 991. The noble Earl responded by saying that:

“We are exploring ways in which patients can continue to benefit from innovative cancer drugs at a cost that represents value to the NHS, in the context of developing the new pricing arrangements for branded medicines”.—[Official Report, 25/6/13; col. WA 111.]

This cannot be simply about businesses investing in the UK. Somewhere, we have to balance the budget.

Within this, I also believe that doctors have tremendous power to influence patients. I have been hugely fortunate and have had some amazing doctors in my life. In fact,

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without the NHS I would not be here. However, it is important to have appropriate guidelines for explaining to patients which drugs they are being offered, and for them to know whether they are new drugs or medication that has been previously been developed but is now being suggested for new indications. In terms of research, it is absolutely imperative that we have the appropriate number of people using medication to report back the data so as to be able properly to monitor it. There is no doubt that this work is important for many people who have life-threatening conditions. I look forward to future debates in this area.

7.59 pm

Lord Walton of Detchant (CB): My Lords, in thanking the noble Baroness, Lady Thomas, for initiating this debate, I declare an interest as the honorary life president of the Muscular Dystrophy Campaign. I hold similar appointments with many other medical charities.

This is a very important issue. I have given support over the past few years to the Rare Diseases Research Consortium and Genetic Alliance UK, chaired by Alastair Kent. Many of the 300-plus rare diseases that have been carefully characterised and identified by those organisations affect the neurological, neuromuscular and other, similar systems. Some are fatal but virtually all cause increasing disability of various kinds. Advances in molecular genetics over the past few years have been immensely exciting. In many of these diseases—in fact, the majority are genetically determined—the causal gene has been identified and, often, located.

The missing gene product has also been identified, as in, for example, dystrophin, normally a constituent of the muscle fibre membrane missing in Duchenne muscular dystrophy. Similarly, in Pompe disease, a condition causing severe muscle paralysis and affecting the heart, acid maltase has been identified as the missing substance. However, in many other neurological disorders, including the various cerebellar ataxias, the condition has been found to be due to multiple amino acid triplet repeats that actually, instead of being absent and therefore not causing absent metabolic activity, damage the human cells.

Treatments have begun to emerge in diseases such as cystic fibrosis, and acid maltase can be effectively treated by gene therapy in Pompe disease. As the noble Baroness, Lady Thomas, said, haemolytic uraemic syndrome, which affects only a few dozen people in the UK and is inherited, is effectively treated with a drug called eculizamab, which is highly effective. It is a life-saving treatment; without it, the disease moves to a fatal conclusion.

Many more such drugs are being developed, and in Duchenne muscular dystrophy drugs have been identified and used for the technique called exon skipping, which appears to work only in specific mutations and by no means in all. But Dame Kay Davies and her colleagues in Oxford are working on a mechanism of utrophin uptake regulation, persuading utrophin to move along the muscle fibre membrane to replace the missing dystrophin. These drugs are being trialled in excellent treatment trials in London, Oxford and Newcastle, funded by the Medical Research Council, the Muscular Dystrophy Campaign and other organisations.

1 Apr 2014 : Column 919

So what is the problem? The problem is that more and more such drugs are coming on stream but, because the number of patients affected by these rare diseases is comparatively small, the drugs are not likely to be commercially successful. The industry has been extremely helpful in making them available for trials, but this cannot go on indefinitely. The drugs that are likely to treat rare diseases affecting 100-plus people are called ultra-orphan drugs, whereas those affecting 1,000-plus people are called orphan drugs, and it is clear that they are going to present an increasing problem over the coming years.

The problem is that the cost-benefit analysis that has usually been employed by NICE in assessing the value of these drugs is not likely to be helpful or even appropriate in assessing their value in the case of rare diseases. However, we await the outcome of NICE’s consultation on what it calls value-based medicines, and we hope that this will be positive in relation to these drugs. The government initiative of creating a rare diseases advisory group answerable to NHS England has been helpful but, most particularly, the early access scheme, to which other speakers referred, is most welcome as being a very exciting development for the future.

As time goes by, though, in my opinion those initiatives are not in themselves going to be enough. As my noble friend Lady Masham said, we miss the advisory group on national specialist services, AGNSS for short, which had ring-fenced funding. At the end of the day, it is more than likely that ring-fenced funding will be needed for the management and treatment of these conditions with orphan and ultra-orphan drugs. I hope that the Government will agree that in their new structure a neuromuscular clinical reference group should be established for this purpose.

Human suffering is not something that can be measured in numerical terms. The needs of these patients and their families are paramount. Somehow or other, this problem is one with which this and future Governments are going to have to come to terms.

8.04 pm

Lord Hunt of Kings Heath (Lab): My Lords, I declare my interests as chair of an NHS foundation trust, president of GS1 and a consultant and trainer with Cumberlege Connections.

I, too, congratulate the noble Baroness, Lady Thomas, on securing this debate on this vital subject. I welcome the Government’s announcement about the early access to medicines scheme. However, like the noble Lord, Lord Kakkar, I would like some assurance about the scheme being operated equitably. Will the Minister assure me that it will not apply just to patients being treated by specialist centres where research or clinical trials have been undertaken? I would also like to pick up the point made implicitly by the noble Baroness, Lady Grey-Thompson, which is that patients must be able to make an informed choice about whether to consent to the treatment being offered.

I also believe that this question raises much wider issues about the NHS approach to innovative medicines. It is a critical issue for NHS patients but is also critical in terms of the health of UK pharma and the contribution

1 Apr 2014 : Column 920

that it makes to our economy. I have long been troubled by the UK approach to innovative medicine. We have a hugely strong science base and a strong pharma R&D presence that cannot be taken for granted, yet traditionally we have been very slow on the general uptake of proven new medicines and treatments. Within the NHS, it is remarkable that drug costs are treated as a disturbing cost pressure to be held down, if they can be, whereas increased spending on clinical staff and medical equipment is seen as a good thing, per se.

The noble Earl and I have been debating these issues for many years. We debated the introduction of NICE. He will recall that NICE was introduced as a way of speeding up the introduction of new, innovative, proven treatments, but we know that we have some way to go. We also know that there are still some concerns about the conduct of medical trials in this country, which has a direct bearing on our approach to innovative new medicines and treatments. I refer the noble Earl to an interview given by the director of the Wellcome Trust, in which he expresses real concern about the continuing delay in medical trial approvals. He recommends generic protocols preapproved by ethic committees and institutions at a national level. I know the noble Earl has a particular responsibility in this area, and I would be very interested if he were able to comment on it.

We also know that, as the noble Lord, Lord Walton, suggested, there are gaps in the NICE methodology. The cancer drugs fund is an example of one government response to gaps in the methodology. This early-access scheme is another. The noble Baroness, Lady Thomas, and the noble Lord, Lord Walton, discussed orphan drugs. That is another area where, left to itself, the market will not enable them to be brought to market at an affordable cost. As the noble Lord, Lord Walton, said, NICE is working on a value-based approach. It is clearly early days, but if the noble Earl were able to comment on the extent to which he thinks that would enable NICE to produce new methodologies that would cover these areas, that would be very welcome. The alternative is that government is simply going to have to fund and top-slice various little funds to meet gaps in the NICE approach. At some point, that will call into question the whole NICE approach. I think we have recognised for some years that, while overall the NICE approach is lauded internationally, there are gaps that we have to find a way of filling.

My final question for the noble Earl is about clinical commissioning groups. One of the issues about innovative medicines is the decisions now being taken by these new organisations. The noble Earl will be aware of research in the past few months that shows that in relation to technology appraisals, there can be up to a twentyfold variance in uptake in different parts of the country. He needs no reminding that there is a legal requirement on clinical commissioning groups to fund NICE technology appraisals. I am concerned that clinical commissioning groups are ignoring their statutory responsibilities. This is the other end of the whole approach to innovation. If we are unable to guarantee to patients that these innovative treatments are going to be introduced in the NHS, we are letting patients down. I hope the noble Earl will be able to give us some reassurance on this.

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8.10 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I congratulate my noble friend Lady Thomas on securing this debate and I am grateful to her for providing the opportunity to update your Lordships on, in particular, the early access to medicines scheme. It is just one way in which the Government are supporting improving patients’ access to new medicines.

I begin by making it clear that our priority is to ensure that patients, including those with rare and life-threatening or life-limiting conditions, have access to new and effective treatments on terms that represent value to the NHS and the taxpayer. I agree with the noble Baroness, Lady Masham, that it is essential that people get the medicines and treatment that they need. That is why we have set up the cancer drugs fund and why we have NICE to give evidence-based advice to clinicians and the NHS.

On 5 December 2011, the Prime Minister announced a new strategy for UK life sciences. One of its commitments was that,

“early in 2012 the MHRA will bring forward for consultation proposals for an ‘Early Access Scheme’”.

I am pleased to be able to say that, following public consultation co-ordinated by the Medicines and Healthcare products Regulatory Agency—known as the MHRA—and engagement with patient groups and industry, we announced the early access to medicines scheme on 14 March. The purpose of the early access to medicines scheme is to support access in the UK to promising new, unlicensed or off-label medicines in areas of unmet medical need. Under the scheme, the Secretary of State for Health, acting through the MHRA, will provide a scientific opinion on such medicines to treat, diagnose or prevent life-threatening or seriously debilitating conditions that do not have adequate treatment options. This could include patients with advanced cancer or children with Duchenne muscular dystrophy.

MHRA is responsible for managing the scientific aspects of the scheme, which will follow a two-step process. Step one involves giving a new medicine a promising innovative medicines designation, known as a PIM designation, which will provide an early indication that a product may be a possible candidate for entry into the early access to medicines scheme, based on the available clinical data. Companies that wish to move to step two must hold a PIM designation and provide further relevant data on their product’s quality, safety and efficacy. At step two, the MHRA will produce a scientific opinion describing the benefits and risks of the medicine, based on information submitted by the applicant after sufficient data have been gathered from the patients who will benefit from the medicine.

The scientific opinion will be made available on the MHRA’s website to assist clinicians and patients in making treatment decisions and to support informed consent by patients by informing them of the risks and benefits of the product. The scheme will be launched and ready to receive applications from Monday of next week, 7 April 2014. I understand that full details, together with guidance, will be published on the MHRA website at this time.

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The noble Lords, Lord Kakkar and Lord Hunt, asked about equal access for patients under the scheme. EAMS medicines will be provided for free by the company concerned. The scientific opinion will be available on the MHRA website, as I have mentioned, to allow doctors and patients to make treatment decisions. That will provide an equitable platform for patient access.

The noble Lord, Lord Kakkar, also asked about academic science input into the scheme. The scheme is open to academics, industry and charities, provided that the criteria are met. Step one, the PIM designation, would also be open to academic research units such as at UCL. As the noble Lord mentioned, academic health science networks could well have a role in promoting the scheme. All AHSNs are now up and running and their funding is assured for the immediate future.

It is important to recognise that the early access to medicines scheme is a UK-only scheme that relates to unlicensed medicines en route to market. It is always better for a patient to receive a licensed medicine where possible and for companies to have the legal certainties that come with a marketing authorisation. For this reason, the MHRA continues to engage at both European and global level to explore how the medicines licensing process can become more efficient. We welcome the European Medicines Agency’s launch of its adaptive licensing pilot on 19 March 2014, as the MHRA has had a leading role in the preparation of the pilot and accompanying guidance.

Adaptive licensing is a prospectively planned, adaptive approach to bringing drugs to the market. It seeks to maximise the positive impact of new drugs on public health by balancing timely access for patients with the need to provide adequate evolving information on benefits and harms. Adaptive licensing uses the regulatory processes and flexibilities within the existing EU legal framework, such as conditional marketing authorisation. The pilot will explore the strengths and weaknesses of all options for development, assessment, licensing, reimbursement, monitoring and utilisation pathways in a confidential manner and without commitment from regulator or company. I plan to meet relevant government and industry partners later this month to ensure that the UK can capitalise on the pilot. I hope that UK-based companies will be at the forefront of those presenting products to the EMA.

The noble Lord, Lord Kakkar, asked about the draft Medical Innovation Bill, which aims to encourage responsible innovation in certain circumstances and to discourage irresponsible innovation. I echo the noble Lord’s thanks to my noble friend Lord Saatchi for putting these concepts before your Lordships’ House previously. We are currently consulting on this draft Bill. The consultation paper was published on 27 February and the consultation runs until 25 April. For that reason, I am afraid that I am not yet in a position to make a definitive pronouncement on the Bill’s provisions.

The noble Lord, Lord Kakkar, asked about equality of access to specialised services. NHS England, as he knows, is now responsible for commissioning prescribed specialised services across England, so patients should know what services they can expect. The Government remain totally committed to making the UK a world-leading place for life sciences investment. The noble

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Lord was right to say that trialling drugs is an expensive business, but good progress is being made through the life sciences strategy to build a better life science ecosystem to attract and develop talent, to reward innovation and to overcome barriers to innovation. The

Strategy for UK Life Sciences


“It has become increasingly challenging for life sciences companies, particularly SMEs, to discover, develop and commercialise medical innovation”.

AHSNs, as the noble Lord rightly said, have therefore been set up as a key response to these challenges, acting as the link between the NHS and industry. I think that the universal coverage of AHSNs has had multiple benefits in terms of potential UK growth.

The noble Lord, Lord Walton, and my noble friend Lady Thomas mentioned ultra-orphan drugs. We are aware of the challenges posed by treatments for the very rare conditions, with small patient populations, for which these drugs are made. My noble friend expressed particular worry about eculizumab, or Soliris. From April 2013, NICE has been responsible for the evaluation of selected highly specialised health technologies. It issued draft guidance on 27 February which does not recommend the drug’s use. Stakeholders had until 25 March to submit comments to NICE. I must stress that NICE has not yet issued its final guidance on eculizumab to the NHS and I understand that that is expected in July. While NICE undertakes its evaluation, NHS England has developed an interim commissioning policy to enable patients with aHUS to receive eculizumab. To clarify, AGNSS found that eculizumab was clinically effective but that further information was needed to demonstrate its cost-effectiveness. That is why we tasked NICE with evaluating it.

All candidate medicines have the potential to induce toxicity. I will address the interesting speech of my noble friend Lord Colwyn by reminding noble Lords that medicines must undergo a series of rigorous assessments, progressing from small cohorts of patients in rigorously controlled conditions to larger and more diverse groups of patients, thus ensuring quality, safety and efficacy. We have three phases of clinical trials to ensure that those things are assured.

It is possible to run adaptive licensing design studies that allow for modifications as the trial progresses; for example, the numbers of different treatment arms can be tried out. Such designs have the potential to speed up clinical development and can use resources more efficiently. There is regulatory guidance on adaptive designs. I respond to my noble friend Lady Thomas by welcoming many features of the new clinical trials regulation, which provides for a more streamlined approach, with the introduction of combined clinical trial and ethical approval and a single portal for all EU applications.

I share the enthusiasm and excitement of the noble Lord, Lord Walton, about the developments in genetic medicine. That is why we have established Genomics England, a development that has put us firmly at the head of the field.

The noble Lord, Lord Hunt, asked what we are doing to ensure the rapid uptake of NICE-recommended drugs in the NHS. Innovation, Health and Wealth, a

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document that we published in 2011, set out a range of measures to support the rapid uptake of NICE-approved medicines in the NHS, including the establishment of the NICE Implementation Collaborative, the automatic incorporation of NICE-recommended drugs into local formularies and the introduction of an innovation scorecard to compare local uptake. Good progress has been made in delivering those commitments, but we recognise that more can and should be done. We are committed to seeing

Innovation, Health


nd Wealth


There are variations in drug usage among CCGs. As the report points out, there can be many reasons for variation. Different areas may have different health needs and it is right that the treatments used should be decided by doctors and patients. As I have said to the noble Lord before, we are committed to tackling unjustified variation in the usage of medicines and we encourage NHS organisations to consider the findings of the report in the context of the needs of their populations.

As my time is running out, I will have to write to noble Lords to cover those issues to which I have not yet managed to reply. However, in conclusion, I was pleased to announce yesterday my approval of the business case presented by the Health Research Authority and the funding that goes with that to enable it to fulfil its remit. The HRA will provide a single approval for research in the NHS to radically streamline and simplify how studies are set up. I believe that the UK’s approach of allowing patients access to promising but as yet unlicensed medicines while encouraging greater use of European licensing flexibilities will provide much earlier access to a number of innovative new medicines, in particular in areas of unmet need. We can be proud of the leading role that we play in ensuring that the UK remains one of the leading countries in which to develop medicines and to see them reach the patient’s bedside in clinical use.

8.23 pm

Sitting suspended.

Immigration Bill

Report (1st Day) (Continued)

8.27 pm

Clause 16: Place from which appeal may be brought or continued

Amendment 15

Moved by The Earl of Sandwich

15: Clause 16, page 14, line 31, at end insert—

“( ) An appeal to which subsection (3) applies must be brought from within the United Kingdom if the appellant has a child in the United Kingdom, and it would be in the best interests of that child for the appeal to be brought from within the United Kingdom.”

The Earl of Sandwich (CB): We had a long discussion about children earlier in the afternoon, and I am bringing back the subject of children today under the heading of “deportation”. This amendment is about the children of parents who are facing deportation.

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The Minister may remember that I was away for most of Committee, but I mentioned it at Second Reading and pointed out that, under the Bill, against the advice of the JCHR, individuals removed from this country may be prevented from challenging their deportation if they are no longer in the UK, and that their children, if separated from them for this or for other reasons, may be in particular difficulty. The noble Baroness, Lady Hamwee, expressed similar concerns in her amendment in Committee.

If the parent is removed, how will the Home Office discover the true situation of the child? As the noble Lord, Lord Pannick, said in that debate, in the light of the changes going on to judicial review, and other changes, there are real concerns about whether an effective practical remedy will remain available. The noble Lord, Lord Avebury, also brought this issue up earlier today. There will be huge practical barriers to individuals appealing their deportation from abroad. Such cases often turn on issues of credibility. Appellants will be severely disadvantaged by not appearing in court and, in the present climate of legal aid cuts, they will face serious problems in accessing any legal advice.

The noble Baroness, Lady Hamwee, had difficulty with a similar amendment, which is why I am bringing it back with an additional reference to the UN Convention on the Rights of the Child. Not surprisingly, this convention states that the child should not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine that such separation is necessary for the best interests of the child. Earlier, the noble Lord, Lord Taylor, gave yet another assurance on this. I note that Amendment 58 is about a duty regarding the welfare of children, and that the amendment in the name of the noble Lord, Lord Watson, concerns the best interests of children.

This matter surely also covers the point made in a previous debate by the noble Lord, Lord Bourne, that there might be ambiguity about what the best interests of the child were, and that the child might be better off with relations abroad. However, that does not, of course, cover every case. According to legal experts I have consulted, the safeguards under the Bill are insufficient. The noble Baroness, Lady Smith, said that there was still uncertainty in the clause as it stands. Therefore, my first question is: how will the Government consider a child’s best interests before deporting a parent to appeal from abroad?

The noble and learned Lord, Lord Wallace, said that the power was a discretionary one, applied only where there is not a risk of serious irreversible harm, and that it will therefore not be applied in all Article 8 cases. However, a parent’s deportation may result in grave harm to a child that is not irreversible. Therefore, my second question is: will parents be deported before an appeal in cases where this action will cause serious harm to their child, but only serious harm that the Home Office deems will not be irreversible? In Committee, the noble and learned Lord made it clear that we are dealing largely with criminals as well as failed asylum seekers. That may be so, yet one in three of these people does not fall neatly into that category; we know that because, in 2012-13, 32% of deportation appeals succeeded.

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A number of these cases concern parents with British children or settled children who would be significantly harmed by their parents’ deportation. There are plenty of examples from the children’s consortium and Bail for Immigration Detainees which I will not relate today. However, the 2013 UNHCR report highlighted cases where Home Office decision-makers failed adequately to consider the child’s best interests, including in relation to Article 8 of the ECHR. The Home Office can already prevent repeated appeals by certifying claims as clearly unfounded, but Clause 16(3) will prevent people with arguable cases accessing justice.

The noble and learned Lord gave the assurance that, in exceptional circumstances, the power would not be applied—so what are the exceptional circumstances? It is argued that exceptional funding also provides a safeguard. However, the Joint Committee found in December 2013 that out of 746 people who had applied for exceptional funding, only 15 were granted funding, and two of those were immigration cases. We are back to the same old argument. In the experience of Bail for Immigration Detainees, detainees seldom have the skills needed to make their own applications—I know that the noble and learned Lord has heard this time and time again, but it is true—and solicitors rarely make applications because the work has to be done at the risk of non-payment.

I will give just one case study: that of Simone and Ray. Simone was trafficked into prostitution in the UK for three years and was then convicted of a drug-related offence. Her son, Ray, was a British citizen. He was less than one year old when she was arrested, and nearly four by the time of her release. During her sentence, he repeatedly asked for his mother, cried in his sleep, stopped eating properly and screamed uncontrollably after phone conversations with her.

The Home Office argued that Ray could leave the UK with Simone, but by this time he had close bonds with his father, who could not leave the UK for other reasons. Simone successfully appealed her deportation—but if Clause 16 becomes law, people like her will be deported before they can appeal.

Finally, as we are talking about removals, I heard only yesterday that the Home Office has decided to stop offering assisted voluntary return to anyone held in immigration detention as of today, 1 April. This scheme is operated by Refugee Action, through its Choices service. What is the purpose in ceasing to offer assisted voluntary return to those in detention? Do the Government not appreciate the negative effect this will have on removals and on the co-operation of detainees? I beg to move.

Lord Watson of Invergowrie (Lab): My Lords, I shall speak to Amendments 16 and 20 in this group, which appear on the Marshalled List in my name.

Amendment 16 would ensure that the Bill recognised that the promotion of the best interests of the child is not simply a matter of the rights to be interfered with being in the public interest but that the promotion of those best interests is, in itself, in the public interest. In its current form, Clause 18 does not allow for proper consideration of the best interests of all children, as

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required by UK and international legislation. Despite government Amendment 58 reiterating their commitment to the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, Clause 18 does not make clear the need for the best interests of children to be a primary consideration in any Article 8 case involving a child. That includes those who are not British citizens and those who have not lived in the UK for at least seven years.

Amendment 58 does not address the concerns raised by non-governmental organisations, including the Refugee Children’s Consortium, about the lack of an explicit provision in Clause 18 to have regard to children’s best interests. What is required is a provision stipulating what judges must have regard to in the public interest when considering Article 8 of the European Convention on Human Rights in respect of family and private life.

Courts and judges are not under a statutory obligation to comply with the Section 55 duty. Instead, they review the Home Secretary’s decisions and actions in the light of her own duties. The courts have made it clear that children’s rights are a clear public interest consideration in addition to their own personal interests. As the Joint Committee on Human Rights notes in its scrutiny of the Bill, Parliament is entitled to put into primary legislation that which it considers to be in the public interest. The lack of a clear statement setting out the importance of children’s best interests as a factor to be considered creates a risk that children’s best interests will not be taken into account as a matter of public interest to the same degree as those public interest considerations listed in Clause 18. In its evidence to the Bill Committee, the Immigration Law Practitioners’ Association stated that Clause 18 directs attention to some factors at the expense of others. The most obvious missing factor is the best interests of children.

In 2012, the Supreme Court held in the case of HH—UKSC 25—that children’s interests are also public interests and not just private rights, stating,

“although the child has a right to her family life and all that goes with it, there is also a strong public interest in ensuring that children are properly brought up”.

In this respect, the Bill is not consistent with established case law and gives the impression that children’s interests amount to no more than the private and personal interests of an individual and their family. They clearly amount to more than that and this should be reflected in the Bill.

Amendment 20 reflects the fact that “unduly harsh” is an incorrect test of the context of considering what is best for a child, whereas “disproportionate” is known and well understood. New Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by this Bill and relating to Article 8 of the European Convention on Human Rights, states:

“Exception 2 applies”—

where there is—

“a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.

1 Apr 2014 : Column 928

The “unduly harsh” test in relation to children is not consistent with the best interests principles. This test of “unduly harsh” is a legally defined term within the context of refugee protection and internal relocation. I should like to cite an example and I do so in due deference to the noble and learned Lord, Lord Hope. I hope that he will not mind if I quote from a case over which he presided in 2007—the case of the Secretary of State v AH (Sudan) and others. In that judgment, the noble and learned Lord was quoted as having stated in another case:

“‘The question ... is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally ... it will not be unreasonable to expect him to move there’”.

However, I do not believe that that test can be applied within the context of considering children’s best interests. Surely a child should not be expected to live a relatively normal life judged by the standards that prevail. That is not and, I submit, cannot be a best interests consideration. When considering a child’s best interests, a range of issues need to be taken into account, such as the child’s immediate safety and their access to, and the quality of, vital services such as healthcare and education. In addition, under the UN Convention on the Rights of the Child, every child has a right to be cared for by his or her parents. In fact, Article 9 says:

“States … shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.

The audit carried out by the UNHCR last year of Home Office procedures highlighted that there is no systematic collection or recording of the information necessary and relevant to a quality best-interests consideration in family cases. This includes a lack of any mechanism to obtain the views of the child and to give those views weight in line with age and maturity. Research carried out by the Greater Manchester Immigration Aid Unit into unaccompanied children’s asylum cases found that in 24 of 34 cases analysed, the Home Office failed to carry out any determination of the child’s best interests at all. The Joint Committee on Human Rights highlighted similar concerns in its scrutiny of this Bill, noting that without further clarity,

“there is a danger that front-line immigration officials … will be unclear about the relationship between the children duty in s. 55 and the new tests … which use different and unfamiliar language”.

The Government have said that, despite the introduction of tests in the courts, the courts would still be bound by the duty to promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 for all cases involving children. However, Clause 18 is likely to add further confusion, not least for decision-makers, as to how best interests are to be considered. Therefore, I believe that effective judicial oversight is crucial in ensuring that children’s best interests are taken into account in any case involving a child, and these considerations need to be made clear in the Bill.

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In conclusion, considering whether it would be duly harsh to separate a child from his or her parent is inconsistent with the obligations to consider the child’s best interests. Perhaps I might invite the Minister to explain just what he understands “duly harsh” and “unduly harsh” to mean. At precisely what point does “duly harsh” become “unduly harsh”, and who decides where the line is crossed? The use instead of the term “disproportionate” at least allows for a balancing exercise within the well established approach to interference with Article 8 rights, which must include consideration of best interests. I very much hope that the Minister will take these points on board and I look forward to his response.

Baroness Lister of Burtersett (Lab): My Lords, I rise to speak to Amendment 21, supported by the noble Lord, Lord Pannick, and now, I believe, by the noble Lord, Lord Roberts, and perhaps in spirit by the right reverend Prelate the Bishop of Leicester.

First, however, I welcome Amendment 58 in the names of the noble Earl, Lord Listowel, and the noble Lord, Lord Taylor of Holbeach. This addresses one of the concerns raised by the Joint Committee on Human Rights, of which I am a member, as to how the Bill’s provisions were to be read alongside the Section 55 duty to safeguard and promote the welfare of children. But, sadly, as my noble friend has already said, it does not meet our related concern that Clause 18 should make explicit that the best interests of children must be taken into account as a primary consideration. I would be grateful if the Minister could explain on the record the implications of Amendment 58 for Clause 18, building on what the noble Lord, Lord Taylor, said earlier. As it is, I am still perplexed as to why the Government refuse to accept the best interests amendment, given that the Minister said very clearly in Committee:

“We believe that the children’s best interests must be a primary consideration”.—[Official Report, 5/3/14; col. 1384.]

8.45 pm

I will not reprise those arguments today. For that reason, while I express my support for Amendments 15, 16 and 20, I will not speak to them. Instead, I want to focus on the question of the definition of a “qualifying child”, which I touched on in Committee but which was not the subject of my amendment at that stage. At that point, I was questioning the compatibility of giving primary consideration to the best interests of the child with the very notion of a non-qualifying child. I would still question that, but in the spirit of compromise I tabled a more modest amendment aimed simply at broadening the definition of a qualifying child. The more I thought about it, the more it seemed to me that the Government were unable to offer a convincing justification for why the definition of a qualifying child should be limited to a child who has,

“lived in the United Kingdom for a continuous period of seven years or more”.

Of course, that excludes any child aged under seven. I will explain in a moment why my amendment would substitute the age of four for that of seven.

The definition of a qualifying child is bound up in the public interest considerations applicable where a court or tribunal is required to decide whether a

1 Apr 2014 : Column 930

decision under the Immigration Act breaches a person’s right to respect for private and family life under Article 8. The Bill provides:

“In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where … the person has a genuine and subsisting parental relationship with a qualifying child, and … it would not be reasonable to expect the child to leave the United Kingdom”.

I emphasise that “genuine and subsisting parental relationship”. This is not an invitation for someone to exploit a relationship with a child with whom they do not have a genuine, ongoing parental relationship. Of course, there is also the reasonableness test to be met, which I understand had been used to refuse many families under the 2012 Immigration Rules.

In response to questioning from Julian Huppert MP in the Public Bill Committee, the then Minister for Immigration explained the reasoning—if you can call it that—behind the use of seven years as the qualifying threshold. He said:

“It is not a number that we simply invented for the Bill. It is based on a previous seven-year concession for children, known as DP5/96, which was a concession against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what article 8 required and led to uncertainty and inconsistency. We want to redress the balance, and our starting point is that where a child has been in the UK for seven years, that has significant weight when considering article 8”.

He continued:

“In EA (Nigeria) in 2011, the court said that, in the case of very young children—from birth to age 4—the child is primarily focused on themselves and their parents or carers. It said that very young children do not typically form any deep or strong friendships outside the family, such as will happen as the child grows up and begins to develop more independence. We have acknowledged that, if a child has reached the age of seven, it will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and will be developing social networks and connections beyond the parents and the home. However, a child who has not spent seven years in the UK, either will be relatively young and able to adapt, or, if they are older, will be likely to have spent their earlier years in their country of origin or another country.”—[Official Report, Commons, Immigration Bill Committee, 5/11/13; cols. 216-17.]

The argument hinged more on the age at which a child develops significant relationships outside the home than on the length of time in the UK as such. The noble and learned Lord repeated this explanation in Committee. He went on to say that,

“the important point that we are seeking to make here is that it is for Parliament to indicate what it believes the age of a qualifying child should be. We are saying that in our judgment it should be seven, for the reasons I have articulated”.—[

Official Report

, 5/3/14; col. 1383.]

With due respect to the noble and learned Lord, I have not heard one good reason for the age of seven being used. I have heard of a previous concession which used the age of seven without a real explanation of what it was based on, and I have heard about a court case which explicitly referred to birth to the age of four as being the period when the child is focused primarily on themselves and their parents or carers—hence, the substitution of “four” for “seven” in this amendment.

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Another reason put forward by the Minister is that children over the age of seven would be part of the educational system and may be developing social networks and connections beyond their parents and home. But children join the education system at the age of five in this country. In practice, most join it earlier through nursery education and, even if not in formal nursery education, they develop relationships with other children and adults through childcare settings of various kinds.

In Committee, I spoke of my own deep personal grief when, as a young only child, I lost my best friend who lived two doors down because her family moved away from Manchester where I grew up. As a good social scientist, I realised that a sample of one may not be persuasive, even though I saw many noble Lords nod their heads in recognition. Perhaps they were remembering their own personal experiences or thinking about the experiences of their children or grandchildren.

Naturally, I have not been able to do a systematic evidence review, but with help from outside colleagues, to whom I am grateful, I have been able to find some relevant articles. A study into developmental psychology confirmed my own experience that when children have a friend who moves away they can suffer even as pre-schoolers. Let us think how much greater the effect is on children if they are torn away not just from a single childhood friend but from the whole community that they know.

The authors of an article published by the Child Study Center state:

“Early in life children begin to interact with children outside the family—in child care settings, play groups, and preschool programs. The friendships children have with each other are different than those they have with parents and relatives. Family relationships provide an ease, a closeness, a deep sense of intimacy. But they don’t substitute for other relationships. Starting young and continuing through adulthood, friendships are among the most important activities of life … Friendships are important in helping children develop emotionally and socially … The solace and support of friends help children cope with troubling times and through transition times … Friendships are not just a luxury; they are a necessity for healthy psychological development”.

I could quote from more such learned articles but, given the time, I will spare your Lordships. My point is that even young children under the age of seven develop important attachments outside the immediate family, which should be reflected in the definition of a “qualifying child” when considering the question of deportation and the child’s best interests.

In the letter from the Minister, the argument is also made that,

“if a child’s presence in the UK entitled them to permanent residence, it would mean we would have to grant settlement to persons coming to work temporarily in the UK with their family”.

I am bemused by this argument because no one is proposing that a child’s presence in the UK should entitle them to permanent residence. If a family were here only temporarily, it is easy to envisage that it would be thought reasonable to expect a qualifying child to return. That said, I would point out that from a child’s perspective—it is a child’s perspective that we should be taking here—four years is a long time and not a temporary interlude. But even taking that into account would not mean an entitlement as such.

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At the outset, I welcomed the concession that the Government have made with regard to the welfare of children. I very much hope that they might now feel able to take this small further step. The Minister has emphasised that,

“it is for Parliament to indicate what it believes the age of a qualifying child should be”.—[

Official Report

, 5/3/14; col. 1383.]

I now invite your Lordships to do just that. I hope that I may have persuaded noble Lords and the Minister that four would be a more appropriate age than seven, using the very arguments that the Government have used to justify seven.

The Earl of Listowel (CB): My Lords, before speaking to my amendment I would like to say just a few words on what the noble Baroness, Lady Lister of Burtersett, has just said. She reminded me very much of the work of the child psychotherapist Anna Freud, who wrote several books on law and children with two eminent jurists from Yale University in the United States. She wrote about the difference between child time and adult time. A year in the life of a child is obviously disproportionately large compared with a year to an adult. We are all very concerned about children who languish in the care system who are just sitting waiting to be adopted. Even six months for a very young child is a huge chunk of their lives. I have a lot of sympathy for what the noble Baroness said.