Vol. 708 Wednesday No. 41 4 March 2009

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Equality: Volunteers Schools: Music St Helena Airport Gaza: Reconstruction Corporation Tax Bill First Reading Borders, Citizenship and Immigration Bill [HL] Committee (Third Day) Northern Ireland Criminal Injuries Compensation Scheme 2009 Draft of Alterations to the Northern Ireland Criminal Injuries Compensation Scheme 2002 Motions to Approve Northern Ireland Bill First Reading Criminal Damage (Compensation) (Amendment) (Northern Ireland) Order 2009 Motion to Approve Borders, Citizenship and Immigration Bill [HL] Committee (Third Day)(Continued)

Grand Committee Health and Social Care Act 2008 (Registration of Regulated Activities) Regulations 2009 European Parliamentary Elections (Franchise of Relevant Citizens of the Union) (Amendment) Regulations 2009 Representation of the People (Amendment) Regulations 2009 Parliamentary Constituencies (England) (Amendment) Order 2009 Debated

Written Statements Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2009, this publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through the Office of Public Sector Information website at www.opsi.gov.uk/click-use/ 725 Equality: Volunteers[4 MARCH 2009] Equality: Volunteers 726

manager 30 years ago and have been a member of two House of Lords CAB management committees. The important point here is that the York CAB resolved the issue through Wednesday, 4 March 2009. an independent review by John Stoker. I do not wish to discuss the details of the case but it is important to 3pm learn the lessons from that review and ensure that those lessons are taken on board by other charities Prayers—read earlier at the Judicial Sitting by the and organisations with volunteers. I assure the noble Lord Bishop of Norwich. Baroness that the Government will examine the issues that the review raised and we will certainly take action where appropriate. Equality: Volunteers Question Lord Hodgson of Astley Abbotts: My Lords, I declare Asked By Baroness Afshar an interest as president of the NCVO. If the Minister is inclined to consider further regulation of charities, To ask Her Majesty’s Government what action will she bear in mind that they are currently under they are taking to ensure that volunteers working considerable stress, financial and otherwise, given the for charities enjoy the same rights under equality economic circumstances, and be careful about the legislation as those in paid employment. additional burdens that she puts on a sector that carries out such valuable work for our society? Baroness Thornton: My Lords, the Government recognise the contribution to our society of volunteering. Baroness Thornton: My Lords, this Government We are working with volunteer organisations to ensure have done a great deal to support the third sector and that every volunteer is properly treated and has a positive charities. We have, through the Charities Act, for experience. However, the diverse nature of volunteering example, modernised the legislation as it applies to and the varied relationships between volunteers and charities, and we have supported volunteering the organisations that engage them mean that equality organisations to ensure that volunteers get a better legislation does not apply to volunteers in the same deal. We know that in the economic downturn charities way as it does to employees. However, volunteers are such as Crisis are seeing an increase in the number of currently protected from discrimination in so far as people coming forward to volunteer, and we wish to the organisation is providing goods, facilities and services support them in providing support. This Government to the public. These provisions will be retained in the have put an enormous amount of resource into supporting equality Bill and extended to cover age. the third sector because we regard it as a very important part of our civil society. Baroness Afshar: My Lords, I thank the noble Baroness for that very helpful Answer. However, Baroness Thomas of Walliswood: My Lords, I recognise sometimes the good name of volunteers is ruined by the great service done to the nation by volunteers and unfair dismissals or accusations. In the light of the the useful route that volunteering presents to people very important contribution that they make, would it who have been out of work or unable to work for some be possible to allow them access to an ombudsman so years and want to get back into the labour market. If I that they have a route to clear their name? understood the Minister correctly, she seems not to welcome the idea of including protection for volunteers Baroness Thornton: My Lords, the noble Baroness in the equality Bill. Does she have any other legislative raises an interesting point. I know that this Question route to improve the situation for volunteers? has been precipitated by the fact that the citizens advice bureau in York, where she is from, has experienced some serious issues concerning the way in which volunteers Baroness Thornton: My Lords, volunteers are already have been managed over the past year. I am happy to covered by the current prohibition of discrimination say that they have been resolved through an independent in the provision of facilities, in the same way as anyone review by John Stoker. I can appreciate that those else, in existing anti-discrimination legislation, which volunteers might wish to draw some broader lessons will be retained within the equality Bill. Indeed, it will from their experiences about where volunteers should be extended to cover age. The equality Bill will include seek support and advice when they need it. We are not powers to ban and justify discrimination, for example, convinced that seeking employment rights under equality against older people in the provision of goods, facilities legislation is the solution, although exploring the possibility and services. We are currently taking forward those of an ombudsman may be one. developments but we are not considering legislation applying particularly to volunteers. The nature of Baroness Wilkins: My Lords, in the light of the volunteering is something that evolves through support York CAB experience, what statutory rights might the and encouragement by the organisations that deal Government think appropriate for such workers to be with volunteering. able to clear their name? Baroness McIntosh of Hudnall: My Lords, I am Baroness Thornton: My Lords, I should declare an sure that my noble friend would agree that the business interest. I have huge affection and respect for the work of volunteering, although it may occasionally throw undertaken by the CAB service. Indeed, I was a CAB up difficulties, is on the whole good not only for the 727 Equality: Volunteers[LORDS] Schools: Music 728

[BARONESS MCINTOSH OF HUDNALL] very commendable investment is not yet paying off as organisations that have volunteers but the volunteers consistently as it should. Will she ensure that an even themselves? What are the Government doing to encourage stronger message goes out from her department to all more young people into volunteering? schools, emphasising the benefits of music education not only to individual students but to the whole school Baroness Thornton: My Lords, we have been keen community? Will she perhaps place particular stress to promote volunteering across the population but on singing, which, as she and I both know, is very particularly through the creation of V, which was enjoyable and relatively cheap to deliver? launched in 2005 in the year of the volunteer. It is the new national youth volunteering programme; a charity Baroness Morgan of Drefelin: My Lords, I thank that encourages 16 to 25 year-olds to volunteer. For my noble friend for her question and for giving me the example, the British Red Cross, through V, offers opportunity to send a strong message to all those opportunities for volunteering. In April, it will be concerned about music education. We are extremely offering full-time placements for those who want to committed to making music education a reality for all commit themselves to 30 hours a week over 13 weeks. children, particularly in primary schools, where we are V also points to its success in getting young people investing significantly in the “Sing Up” campaign. We who are not in employment, education and training hope that, by 2011, all schools will be singing schools. back into employment through their volunteering work. Baroness Walmsley: My Lords, will the Minister get Baroness Rawlings: My Lords, as a former president the Qualifications and Curriculum Authority to produce of the National Council for Voluntary Organisations, clear guidelines about musical progression? Non-specialist I ask the Minister to answer the question posed by my teachers, in particular, find it difficult to plan and noble friend Lord Hodgson. Will she explain the assess musical progression. Secondly, will the Minister difference between being an employed person and a show leadership for the “Sing Up”campaign by returning volunteer? to the Parliament Choir for its performance of “Messiah” in York Minster in November? Baroness Thornton: My Lords, that is a very good question. Noble Lords who are involved in the law will know that being a volunteer is quite different from Baroness Morgan of Drefelin: My Lords, the temptation being an employed person. We think that we have to sing a song for this great House is almost getting the drawn the line of protection in the right place. There better of me. I love the Parliament Choir. When I would be significant difficulties in extending to volunteers came into the House, one of the most welcoming the protection from discrimination that currently applies experiences was to be a member of the choir. I take the in employment. That is because of the diverse nature noble Baroness’s point about progression in music of volunteering and the relationship between volunteers very seriously. We are not expecting all primary school and the organisations that engage them. By its nature, teachers, for example, to become music specialists, but there is not a contract that has the obligations that we are putting in place the professional development exist between employer and employee. that teachers need to be confident leaders of singing. We are also training young people. I will take the noble Baroness’s concerns back to the department. Schools: Music Question Baroness Verma: My Lords, can the Minister say 3.08 pm how much of the £349 million Music Standards Fund allocated to local authorities for key stage 2 pupils has Asked By Baroness McIntosh of Hudnall been spent and how the Government have monitored To ask Her Majesty’s Government whether they local authority outcomes? will continue to support and extend the provision of music education in schools. Baroness Morgan of Drefelin: My Lords, I can say, for example, that we made a commitment to invest The Parliamentary Under-Secretary of State, £10 million capital in the musical instrument fund. Department for Children, Schools and Families (Baroness Those resources have been used to secure 94,000 new Morgan of Drefelin): My Lords, music is not only an instruments, which come to £8.25 million for 2008-09. enjoyable and beneficial activity in its own right, it I think that is what the noble Baroness is driving at. If offers enormous benefits right across a child’s education. I have not picked up the right numbers, I shall write to We believe that all children should have the opportunity her as quickly as I can. to learn to play an instrument while at primary school, and in November 2007 we announced £332 million investment in music education, to include singing, new Lord Low of Dalston: My Lords, the Minister will instruments, performance and access to free music be aware of the inspiring example of the national tuition for primary pupils to 2011. youth orchestra of Venezuela. What can the Government do to promote in this country the Venezuelan initiative Baroness McIntosh of Hudnall: My Lords, I thank known as “El sistema”, which has given rise to the my noble friend for that extremely encouraging reply, national youth orchestra and has, in the past 30 years, but she will be aware that a recent Ofsted report, taken 250,000 people off the streets, off drugs and out Making More of Music, indicates that the Government’s of prison, put a musical instrument in their hands and 729 Schools: Music[4 MARCH 2009] St Helena Airport 730 given an opportunity for the transformative power of Does the Minister agree that it is essential that the music to point the way for the dispossessed in society good progress that has been made in getting primary to have a better life? school children to learn to sing in schools and the work of the cathedral music outreach programme, Baroness Morgan of Drefelin: My Lords, we have which is supported by the Government, must be strongly recently launched the “In Harmony” pilots, which are supported into future years? doing what the noble Lord suggests. They are taking place in particularly deprived communities in this Baroness Morgan of Drefelin: My Lords, this gives country. There are three pilots, and we are investing me the opportunity to stress that we want to ensure £300,000 a year in developing the concept of using the that all young people have the opportunity to enjoy a orchestra environment as a way of working with children, lifetime of singing, but we also want to promote and particularly young children. As the noble Lord said, support the most talented musicians in our schools. putting an instrument in the hands of four year-olds We must have a strategy that will support children in—I am sorry; I will write to the noble Lord with the who want to attend a cathedral school and to have a location of the pilots—and working with the whole career in music as well as all of us who want to enjoy it community through the unifying force of music makes in our everyday life. an impact on the lives of deprived children. St Helena Airport Lord Howarth of Newport: My Lords, does my Question noble friend agree that musical education can be particularly beneficial for young people, often boys, who have not otherwise been motivated or successful 3.17 pm at school, by giving them a different chance to succeed, Asked By Lord Hoyle developing concentration, confidence, empathy and social skills for the benefit not only of the individual To ask Her Majesty’s Government when the but of the whole school? contract for the St Helena airport will be given the go-ahead. Baroness Morgan of Drefelin: My Lords, I agree. That is why we are focusing on primary schools and Lord Tunnicliffe: My Lords, we announced on why we have made a commitment to give all children 8 December 2008 that there will be a pause in negotiations at key stage 2 one year of free instrument tuition. Our over the St Helena airport contract. We are reviewing aspiration is that at least half those children will carry whether it is right to proceed with this project in the on with that tuition, and that by 2011 we will see present difficult economic climate and we will announce 2 million learners taking instrumental lessons. the outcome of our considerations just as soon as we can. Lord Skelmersdale: My Lords, for a child to progress as a musician, they need a specialist teacher. How Lord Hoyle: My Lords, I thank my noble friend for many local authorities do not have peripatetic music that reply, but is he aware that the whole future of the teachers? island depends on the award of the contract for the airport? We have had an early decision that the contractor will withdraw, which means that hotel developments Baroness Morgan of Drefelin: My Lords, I cannot and St Helena becoming a leisure centre will not come tell the noble Lord that, but I will check. The Institute to fruition. The island will still be dependent on the of Education recently undertook a survey of local Government, so this is penny wise and pound foolish. authority music services, and we now know that about Can my noble friend give me a little more definite 50 per cent of children at key stage 3 are accessing information on when this will proceed? If it is not music services. We expect that that will rise to 80 per going to proceed, what plans do the Government have cent by 2011. That is up from 13 per cent in 2005, so for the island? we are going in the right direction. I will check the figure that the noble Lord has asked for and will write to him. Lord Tunnicliffe: My Lords, I cannot add very much detail to my response. Her Majesty’s Government have had discussions with interested parties on this Lord Filkin: My Lords— issue. We do not believe that the situation is black and white. Prior to and during the tender process, officials Lord Wallace of Saltaire: My Lords— from the department undertook detailed consultations with interested parties to accommodate their concerns. More recently, my honourable friend the Parliamentary The Minister of State, Department of Energy and Under-Secretary of State for International Development, Climate Change & Department for Environment, Food Mike Foster, met Impregilo, the bidding company, to and Rural Affairs (Lord Hunt of Kings Heath): My explain the Government’s current position. He has Lords, shall we hear from my noble friend first? also met the Governor of St Helena to explain where matters stand and to hear his views. The bidding Lord Filkin: My Lords, I am grateful for my noble company has decided to extend its bid until the end friend’s lack of bias, as ever. of April. 731 St Helena Airport[LORDS] Gaza: Reconstruction 732

Lord Shutt of Greetland: My Lords, the Minister Government have any idea how much would need to will be aware that I visited St Helena a couple of weeks be invested in St Helena’s heritage, of which there is ago. It took two weeks to be there for 56 hours. Does plenty, to provide that experience? he agree that, in the DfID annual report, the overall budget for overseas development is £5 billion and that Lord Tunnicliffe: My Lords, my understanding is the year-on-year cost of the airport for St Helena is that the island has considerable tourist-attraction potential. likely to be less than 1 per cent of that? Does he agree I have seen no figures that would require any non- further that, although the developed world has commercial investment in that heritage experience other responsibilities for international development, the United than the provision of communications links to enable Kingdom has a specific duty to those dependent overseas it to happen. Those who have studied this say that, territories such as St Helena? given the communications, the island will be a specialist, upmarket holiday destination. Despite all those Lord Tunnicliffe: My Lords, I congratulate the noble encouraging words, this project will be expensive in Lord on his commitment in getting to St Helena for difficult times. 56 hours. I am briefed that it was a pleasant experience. It is a wonderful island. I also congratulate him on his Lord Grocott: My Lords, does my noble friend assiduous study of the DfID annual report—if only agree that it is further evidence of the strength in more would do that. I cannot entirely agree with depth and quality of this Government that, when we his conclusion that the amount would be less than get a Question about an airport runway, it is answered 1 per cent, but it is in the order of magnitude of 1 to by a former airline pilot? 2 per cent. It is a little more than people realise. It is a significant sum of money and one has to take account of that in these difficult times. We accept that we have Lord Tunnicliffe: My Lords, I always agree with my a specific responsibility for the three territories, to noble friend’s questions. look after them and to sustain communications with them, but I can go no further on any assurances on Gaza: Reconstruction this project. Question

Lord Waddington: My Lords, the noble Lord will 3.24 pm forgive me for mentioning that, in 2000, I asked a series of questions pointing to the urgent need for the Asked By Lord Dykes building of an airport on St Helena. I made a number To ask Her Majesty’s Government what steps of speeches to the same effect. Many years have passed they will take to bring reconstruction aid into Gaza since then, during which St Helena has not prospered following the Sharm el-Sheikh conference. and the population has fallen dramatically. I do not want to make a party-political point, but I urge the Minister to do his level best to get things cracking, Lord Tunnicliffe: My Lords, there was broad support because time is not on the side of St Helena. Something at the Sharm el-Sheikh conference for the immediate, has to be done and done quickly. unconditional and sustained re-opening of crossings so that Gaza can be rebuilt. The United Nations promoted its new draft framework for humanitarian Lord Tunnicliffe: My Lords, I can assure the House access. We hope that this will be endorsed at the Ad that I shall do all that I can to urge the Secretary of Hoc Liaison Committee meeting in April, which Israel State to make an early decision, if only out of the will attend. The UK Government will continue to sheer terror of returning here to give this sort of press Israel at the highest levels to increase access. answer. Lord Dykes: My Lords, I thank the Minister for Lord Trefgarne: My Lords, will the noble Lord say that Answer. but is he able to reassure this House? In what nature of airport is intended for St Helena? Will view of the present Israeli Government’s flat refusal it take the largest aircraft or will it just be for regional even to consider reopening the crossing points into flights? Gaza, how on earth will rebuilding materials and equipment get in as soon as possible, bearing in mind Lord Tunnicliffe: My Lords, my understanding is that the urgent humanitarian need? in the outline project the runway was to be 2,200 metres. As an ex-aeroplane driver, I can say that that means Lord Tunnicliffe: My Lords, the nail has been hit on that you can cater for very large aeroplanes, but to get the head. The Israeli Government’s position is not a the sort of range that you need for St Helena, which, flat refusal, but there is no question that Israel can do as has been illustrated, is in the middle of nowhere, most to help this situation by addressing the whole you would be talking about relatively modest 737-type issue of access. Her Majesty’s Government take the aeroplanes, producing the average journey to, say, access position extremely seriously.We have put particular South Africa. effort into diplomacy, going back to 19 January when Mike Foster met Isaac Herzog, the Minister responsible Lord Brooke of Sutton Mandeville: My Lords, if for access. On 21 January, the Foreign Secretary had a there is to be an airport, there will be a need for a private luncheon with the Israeli Foreign Minister to heritage experience for tourists to encounter. Do the urge access and joined EU Foreign Ministers. On 733 Gaza: Reconstruction[4 MARCH 2009] Borders, Citizenship and Immigration 734

4 February, the Prime Minister wrote to Prime Minister However, what came out of Sharm was a pledge of Olmert. On 16 February, the Foreign Secretary met £4 billion of new money, so this is not a problem of Isaac Herzog again and the Secretary of State for money—although it might be, in the longer term—but International Development met him on 1 March. There of access. It is a problem of Palestinian politics, in is no question that the key issue in the short term is which we and the international community are trying access. We are putting all our efforts into trying to to help, and of achieving peace in the region so that break through the access deadlock. proper, long-term reconstruction can start.

Lord Wright of Richmond: My Lords, will the Minister Baroness Northover: My Lords, does the Minister explain how international aid will get into Gaza, not not think it absolutely extraordinary that Tony Blair, only so long as the Israelis maintain their blockade, who has been the quartet’s envoy to the Middle East but, perhaps as importantly, so long as we and our for the past two years, had not even visited Gaza until partners in the quartet refuse to speak to the effective this week? What does that say for the even-handedness authority in Gaza? What assurances have we received of the international community concerning that area or sought from Mr Netanyahu that his continuing of the world? threat to destroy Hamas will not reduce any rebuilding done in Gaza to rubble yet again? Lord Tunnicliffe: My Lords, having read through all Lord Tunnicliffe: My Lords, I believe that the last of the briefings to prepare for this Question, the assurance possibly is beyond the British Government international community is being extraordinarily even- and certainly way beyond my pay grade. We in DfID handed. It has, for instance, been forceful in getting are trying to ensure that there are methods of getting across to Israel the importance of its duties in this aid through. We are using the present agencies that are situation. It has been even-handed in getting across working in Gaza. They are getting some aid through. the importance of stopping the smuggling; that is part We recognise that those agencies have to treat with of it. Tony Blair is doing the right job at the right time. Hamas. As noble Lords know, we do not believe that it The international community really does seem to be is proper at this time to treat with Hamas, but that putting together a good, co-ordinated effort on this. It does not stand in the way of aid getting through. We is now a matter of getting the Palestinians to work certainly agree with the general thrust of the noble together, and of getting long-term peace in the region. Lord’s question that a long-term solution to peace in the area will need Arab and Palestinian reconciliation. Baroness Afshar: My Lords— The need for all countries to work together for a long-term solution is crucial. We praise very much The Minister of State, Department of Energy and Egypt’s role in the recent past and we are very pleased Climate Change & Department for Environment, Food to see the emphasis that the Obama Administration and Rural Affairs (Lord Hunt of Kings Heath): Iam are putting on that. sorry, my Lords, but we are past the 30 minutes. Lord Turnberg: My Lords, we hope that this aid Corporation Tax Bill gets through to those who desperately need it. Gaza First Reading has a border with Egypt. Presumably, the Egyptians have as many anxieties as Israel about the diversion of 3.32 pm funds by Hamas for the purchase of arms, just as it has hijacked the funds going through the UN and The Bill was brought from the Commons, endorsed as a UNRWA. What steps can we take to ensure that the money Bill, and read a first time. aid will reach the needy Palestinians rather than Hamas? Lord Tunnicliffe: My Lords, the noble Lord is right Borders, Citizenship and Immigration Bill that Egypt is concerned that aid gets to the right place. [HL] We are concerned. We believe, as a generality, that aid Committee (Third Day) is getting to where it is needed. The agencies delivering that aid are giving us those assurances. 3.33 pm Baroness Rawlings: My Lords, the DfID website informs us that as of 26 February nearly £16 million Amendment 92 had been allocated out of the £27 million pledged to Moved by Lord Avebury help aid in Gaza. Is the Minister aware that, on 1 March, Douglas Alexander announced an extra 92: After Clause 41, insert the following new Clause— £20 million in funding for reconstruction? Can the “The Ilois: citizenship Minister give us further details on exactly how this In section 6 of the British Overseas Territories Act 2002 (c. 8) and the £10 million not yet allocated from the previous (The Ilois: citizenship) omit subsection (2).” announcement will be spent? Lord Avebury: In moving Amendment 92 and speaking Lord Tunnicliffe: My Lords, it is being spent on an to Amendment 101A, I want to make it clear from the extremely wide selection of projects. This is not a outset that they are not intended as a substitute for the money problem: the outcome of the Sharm conference, right of the Chagos Islanders to return to their homeland, as the noble Baroness rightly says, was to bring our aid from which they were evicted by the decision of the commitment up to £50 million in the short term and Prime Minister, Harold Wilson, in April 1969. I declare something above £250 million over the long term. an interest as vice-chair of the Chagos Islands APPG, 735 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 736

[LORD AVEBURY] shipping link between Mauritius and the Chagos Islands whose objective is to help resolve the issues concerning was severed when Mauritius became independent in the future of the islands and of the Chagossian people. March 1968. In the 1950s and in the 1960s up to that The all-party group is, in fact, holding an important date, people came and went, almost entirely to Mauritius, meeting with the Minister, Gillian Merron, as we and had no way of being aware that giving birth speak. I am sorry not to be able to be there to hear her outside the islands would seriously handicap their remarks, which could have a bearing on these amendments. child 40 years down the line. As the Committee will be aware, the plight of the In response to the Select Committee, the Government dispossessed Chagos Islanders has been considered by said that there was no precedent elsewhere in nationality the courts, and what the noble and learned Lord, Lord law for citizenship to be extended to a third generation Hoffmann, called “the whole sad story” of how, born outside the UK or in an overseas territory. But “the removal and resettlement of the Chagossians was accomplished that is not correct. They concede that, until 1914, with a callous disregard of their interests” there were exceptions, but even under the British is related in the judgment of the Judicial Committee in Nationality Act 1981 a person serving in the Armed the case of Bancoult. It is also being considered by the Forces or in a community institution who was a British Foreign Affairs Select Committee in another place as citizen by descent could transmit his or her citizenship part of its report of July 2008 on the overseas territories. to a child. Even if there were no precedents at all, In response to that report, the Government said that equally there is none that I am aware of for the they regretted, expulsion from the dependent territory of the whole “the way the resettlement of the Chagossians was carried out and population. That was a shabby and disreputable episode. the hardship that resulted for some of them. We do not seek to It becomes even more despicable if we now prevent the justify the actions taken in the 1960s and 1970s. These regrets children of the victims regaining rights that they would have been repeated on many occasions”. have had if their parents had been able to remain in Those pious sentiments have not been any benefit to their ancestral lands. I beg to move. the children of the Islanders born in exile. Although some of the 1,000 who are resident in the UK have Baroness Whitaker: I warmly support these two become full UK citizens, they have to pass the habitual amendments. It is generally held that the Chagos residence test and, even then, many cannot afford the Islands have had an extremely raw deal. Many people enormous fees that are payable for full citizenship. have been sent into hardship and exile against all The Home Office does not seem to be properly natural justice, and the right solution is certainly to aware of these problems, although they were highlighted find a way for them to return to their home. We hope by the Foreign Affairs Committee. I wonder whether that the deliberations of the all-party group with the the Minister could at least tell us how many of the Minister this afternoon will be a step in that process. 1,000 people in the UK have managed to get full However, this amendment at least will deliver something British citizenship. by way of a small quantum of justice in the interim. I hope that the Minister can entertain both amendments. We are asking your Lordships now to consider the rights of the Chagos Islanders and their descendants I apologise in advance if the length of the debate to full British citizenship. Under Section 6 of the prevents my hearing the Minister’s answer, because I British Overseas Territories Act 2002, a person who have an appointment, but I shall certainly read it with was born after 26 April 1969 and before 1 January great care in Hansard. 1983 to a woman who was a citizen of the United Lord Ramsbotham: I, too, support the noble Lord, Kingdom colonies by virtue of her birth in the British Lord Avebury, in these amendments, and declare a Indian Ocean Territory, and who was neither a British similar interest, holding a similar position in the Chagos citizen nor a BOTC immediately before commencement Islands all-party group. My interest was heightened of Section 6, became a British citizen by descent. The when, three years ago, I was invited by the Mauritius omission of subsection (2) would mean that they Government to inspect their prison system and was became a full citizen and thus able to pass on their made aware of the situation regarding the Chagos citizenship to their own children. Islanders, which was represented to me as being rather Amendment 101A would delete the requirement in a blot on the UK’s human rights record. At that time it Section 6(1)(a) that a person be born after 26 April was mentioned that the Foreign Office had carried out 1969 to be eligible for British citizenship. That was the a feasibility study on the return in 2002, but it had date when the removal of the population from the been turned down for, among other things, being too islands was authorised. It appeared in Section 6 without expensive. I suggest that that feasibility study of 2002 consultation with the Chagossians or their advisers. I is now totally out of date. It may be of interest to the believe that the idea was that, before that date, anyone Committee to know that the Chagos Islands all-party who left the islands was free to return. In that scenario— group brought this situation to the personal attention for example, if they went to Mauritius—they were of the new President of the United States, because not voluntarily absent and any mother who wished to do only is Diego Garcia a United States base but the so could have returned to give birth and thus to confer agreement with the United States is due for renewal in citizenship on her child. 2016. It is extremely appropriate to press ahead with That was not in fact the case. It has now been made what is required; while it may seem strange to attach clear that difficulties of return arose much earlier. The the issue to this Bill, in the whole context of nationality planning for the evacuation of the islands was started and our records in this area it is an extremely appropriate in August 1964; the Exchange of Notes with the USA vehicle. I hope that the Government will listen to what on Diego Garcia was at the end of 1966; and the is being said. 737 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 738

Lord Brett: I rise to respond to the very powerful (3) In paragraph 4, for sub-paragraphs (2)(a) and (2)(b) arguments made by the noble Lord, Lord Avebury substitute—“shall be registered under it as a— and my noble friend Lady Whitaker, and with regard (a) British citizen, or to the enormous respect that we all have for the noble (b) in the case of a child whose mother or father is, or would Lord, Lord Ramsbotham, and the powerful case that have been but for their death, a British overseas he puts yet again. territories citizen, as a British overseas territories I have several pages of Civil Service prose to read citizen.” out and, indeed, for the remainder of the amendments (4) In sub-paragraph (4) of paragraph 4, for “sub-paragraphs (1) to this part of the Bill I have copious pages of Civil to (3)” substitute “sub-paragraph (1)”.” Service prose. However, I should like to suggest a different approach. In responding to Amendment 90—it Baroness Miller of Chilthorne Domer: The purpose seems a long time ago, but it was on Monday—I gave of this amendment is to insert into the Bill a new an undertaking that the Government would consider clause dealing with the stateless children of British amendments from the noble Lord. I suggest that we nationals. This amendment ensures that those stateless should consider Amendments 92 and 101A, along children born after 1 January 1983 to British nationals with the remaining amendments to clauses in Part 2, of any type, wherever in the world, are entitled to be with the exception of Amendment 105A which, to my registered as British citizens; and that the children of embarrassment I must return to, having failed to deal British Overseas Territories citizens can be registered with it on Monday. as both British citizens and British Overseas Territories The purpose of my suggesting that I discuss those citizens. amendments not in the form of a considered debate A British citizen born outside the UK and British today, which would take a very long time, but in the Overseas Territories will be a British citizen by descent. form of a discussion, is to look at the cases that have That is, he or she will not be able automatically to caused noble Lords to table the amendments, to consider transmit citizenship to his or her children. In addition, the decisions taken in respect of those cases and the a British Overseas Territories citizen born outside the principles behind those decisions, and to see whether overseas territories will be a British Overseas Territories policy and other practical measures can be found to citizen by descent. That is, he or she will not be able resolve them. The noble Lord will, of course, be automatically to transmit citizenship. It is not always perfectly able to bring back any or all of his amendments possible for the children of British citizens to satisfy at Report, but I hope that we can at least make some existing provisions for registration to obtain citizenship progress on some of them in the intervening period. for want of compliance with residence requirements That would be the most practical way in which I can in the UK or in the British Overseas Territories. In offer the House urgent attention to the points raised, certain circumstances, where the state of residence with the opportunity for a fuller debate at Report. prohibits the acquisition of its nationality, often on racially discriminatory grounds, the children of such Lord Avebury: A few days ago, I did not expect to persons are left stateless. get such a favourable answer from the Minister on There is a problem here. Bearing in mind what the either this amendment or all the other amendments noble Lord has said about discussions in between that will affect Part 2, so we seem to be making good times, I will not go through all the cases that I have progress. I accept with alacrity his offer of further before me, save to say that it would be interesting to discussions on these matters before Report, and learn from the Minister whether this applies to many particularly on the one currently under discussion, on people. In the briefings that I have received, we have the situation of the Chagos Islanders. I am sure that been talking about, perhaps, a few dozen here or there, my colleagues who are meeting Gillian Merron in as in, for example, the case of children in Zambia, Portcullis House at this very moment will be delighted where it is conservatively estimated that about 20 children to hear what the Minister has said. I hope that Gillian of Asian descent are affected by statelessness. We are Merron will have been on message and will have told not talking about hundreds or thousands in such the special meeting of the Chagos Islands APPG cases. I want to put the scale of the problem on record. about the Minister’s kind offer to your Lordships this afternoon. For the time being, I am happy to withdraw The current provisions, as the Minister will know, this amendment. We will no doubt be able to dispose are found in the British Nationality Act 1981 and are of the subsequent amendment on Part 2 in good time very restrictive. They demand three years’ residence in so that we can finish by 10 pm. I beg leave to withdraw the UK, with up to 270 days’ absence, in circumstances this amendment. where the stateless child has no passport with which to be lawfully admitted to the UK or thereafter reside. Amendment 92 withdrawn. They also provide for the registration of the child in a category of British nationality—meaning British overseas 3.45 pm citizenship or British subject status—that is little better than statelessness. That is one of the categories of Amendment 93 British nationality that carries with it no right of Moved by Baroness Miller of Chilthorne Domer abode in the UK or any other country. 93: After Clause 41, insert the following new Clause— This is important at this moment because, with the “Stateless children of British nationals removal of the UK’s reservation on the UN Convention (1) Schedule 4 to the British Nationality Act 1981 (c. 61) on the Rights of the Child—and I am sure that we will (amendments to Immigration Act 1971) is amended as follows. talk further about that this afternoon—this situation (2) In paragraph 4, omit sub-paragraph (1)(c). should no longer be tolerated by the Government. As 739 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 740

[BARONESS MILLER OF CHILTHORNE DOMER] Lord Brett: I have seven pages of text with which I drafted, the amendment would remove the requirement can regale noble Lords, but in practice it would be for the person born outside the UK and British Overseas more sensible for me to pass an urgent note to the Territories to be in the UK or an overseas territory for noble Baroness. It will be fodder for our discussions three years ending on the date of application. It would on problems in this area about which we are hoping to further ensure that the person is entitled to be registered find some solutions. in a category of British nationality that carries with it the right of abode so as to be entitled to live and work Baroness Miller of Chilthorne Domer: I thank the here—that is to say, to be registered as a British citizen Minister for his reply. Given the brevity of his answer, and, as the case may be, as a British Overseas Territories which is a precursor to everything he will discuss with citizen. us, I hope that he will appreciate that I did not speak The amendment would bring rights to stateless to Amendment 101, which deals with the same subject, children of British nationals born outside the UK and to which we would also like an answer. In the mean British Overseas Territories. That is an important time, I beg leave to withdraw the amendment. matter to address, particularly in light of the UN Convention on the Rights of the Child. I beg to move. Amendment 95 withdrawn.

Lord Brett: I am grateful to the noble Baroness for Amendment 96 not moved. setting out the reasoning behind the amendment for our illumination and understanding and for my officials Amendment 97 to note the point that she makes. This issue will be a good starting point for the discussions that I am Moved by Lord Avebury suggesting. 97: After Clause 41, insert the following new Clause— “British citizenship: registration of certain persons without other citizenship Baroness Miller of Chilthorne Domer: I look forward In section 4B of the British Nationality Act 1981 (c. 61) to those discussions. I beg leave to withdraw the (acquisition by registration: certain persons without other citizenship) amendment. omit subsection (2)(b) and (c).”

Amendment 93 withdrawn. Lord Avebury: This amendment seeks to obtain clarification of the way that the Secretary of State gets Amendment 94 had been withdrawn from the Marshalled to be satisfied that a British overseas citizen, British List. subject or British protected person applying to register as a British citizen does not have any other citizenship or nationality now or did not have at any time since Amendment 95 4 July 2002. This means that where an applicant is Moved by Baroness Miller of Chilthorne Domer deemed to have or to have had some other nationality, he has to obtain a certificate from the authorities of 95: After Clause 41, insert the following new Clause— the state in question showing that in fact he is not its “Acquisition by registration: minors citizen. The Minister will no doubt say that the (1) Section 3 of the British Nationality Act 1981 (c. 61) requirement has operated reasonably in the sense that (acquisition by registration: minors) is amended as follows. the UKBA will not demand proof of non-citizenship (2) In subsection (2), omit the words “made within the period of countries with which the applicant manifestly has of twelve months from the date of birth”. no connection. However, where the applicant is connected (3) In subsection (3), omit paragraphs (b) and (c).” with a country by reason of his ethnicity, they do ask for proof, which can be difficult or sometimes impossible Baroness Miller of Chilthorne Domer: In contrast, to obtain. It is alleged that there are instances where this amendment is designed to probe the Government individuals with no other citizenship who are unable on the different requirements for registration of the to extract a letter by normal means from their consulates children of British citizens. The amendment would have obtained one by giving a present to the appropriate remove the requirement to have to be registered within official. Whether or not that is true, it is an obvious 12 months of birth, the status of their grandparents risk. set out in paragraph (b) and the requirements relating Amendment 98 provides noble Lords with an to their parents’ residence in the UK and absences of opportunity to debate the proposals in the review of no more than 270 days set out in paragraph (c). This the noble and learned Lord, Lord Goldsmith, entitled gives us an opportunity to probe why these requirements Citizenship: Our Common Bond. It was commissioned individually as well as collectively are held to be necessary. by the Government, but studiously ignored by them Not all British citizens realise that children born outside since it was published a year ago. In their response to the UK or a qualifying territory will not be British the Path to Citizenship consultation last July, all the citizens. Many people fail or have failed to register Government said was: their children through lack of knowledge of the provisions. “We have carefully studied Lord Goldsmith’s report into This is an equally crucial area to address when it citizenship”. comes to looking at the rights of children and to Now is the time for the Minister to provide a little ensure that we have not left any of these issues more information to noble Lords about the Government’s unexamined. I beg to move. thinking on the recommendations. 741 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 742

In almost every other country of the world, the idea (5) The fourth condition is that the person would have been a that a person could have a nationality but not a right British citizen had his father been married to his mother at the of abode would be treated as nonsense. The most time of his birth.”” fundamental right of a national is to enter, and reside in, the country of his nationality. All other rights and Baroness Falkner of Margravine: The purpose of entitlements stem from the right of abode. We in this the amendment is to allow those born to fathers not country are unique in that British citizens derive their married to their mothers to register as British citizens. right of abode from an Act of Parliament—the In the Nationality, Immigration and Asylum Act 2002, Immigration Act 1971—rather than intrinsically from the law was changed so that children born to British their nationality. We have been unable to ratify fathers who were not married to their non-British and Protocol 4 of the European Convention on Human not-settled mothers were born British if their fathers Rights, to which 42 out of the 46 member states of the could prove paternity. This only assisted those born Council of Europe adhere, because Article 3(2) of the after 1 July 2006, when the provisions were finally convention requires that: given full effect, under Section 162(5) of the 2002 Act. “No one should be deprived of the right to enter the territory The person can be registered by discretion, while still a of the State of which he is a national”. child, under Section 3(1) of the British Nationality The noble and learned Lord, Lord Goldsmith, Act 1981, but the Home Office does not always agree recommended that applicants in all the residual categories to register these children, and not everyone who was of citizenship, except BOTC and BNO—the latter has born out of wedlock to a British father is capable of already been discussed—should be given access to full being registered. British citizenship. We would add BNOs, but stipulate— The fourth condition is designed to cover two situations; although I acknowledge that the necessary words are first, that of children born in the UK or a qualifying not in the amendment—that applicants from these territory after 1 January 1983. If they had been born groups should have no other citizenship. I beg to prior to that date in the UK, that would have sufficed move. to make them British. It will also cover children born to a British father otherwise than by descent; in other Lord Brett: Again, I am grateful to the noble Lord words, someone who can pass on his nationality to his for setting out the reasoning behind the amendment. I children born overseas, outside the UK or in a qualifying am afraid that I have nothing to add to previous territory. It really fills an anomaly in a period of time statements made about the report of the noble and for which these children do not have rights because learned Lord, Lord Goldsmith, which the Government their mothers were not registered. We hope that the are studying. Many points that have been made in Minister will cover it as he has covered other amendments relation to these amendments are pertinent to discussions to this Clause. I beg to move. that we will have on Amendment 90. It would be useful for us to put this matter into that package and 4pm discuss it at that time. Lord Brett: My brief indicates that the Government believe that this proposal is unnecessary in practice. Lord Avebury: I am happy to accept the noble Again, however, the noble Baroness undoubtedly has Lord’s kind offer that we should include this amendment examples of cases that have given rise to concern in the package. I beg leave to withdraw the amendment. requiring this amendment to be tabled. As she has rightly suggested, it would seem to be a useful part of Amendment 97 withdrawn. the comprehensive discussion that we will have on these issues. I therefore suggest that she withdraw her Amendment 98 not moved. amendment.

Amendment 99 Baroness Falkner of Margravine: On that basis, I beg leave to withdraw the amendment. Moved by Baroness Falkner of Margravine 99: After Clause 41, insert the following new Clause— Amendment 99 withdrawn. “Legitimacy (1) The British Nationality Act 1981 (c. 61) is amended as Amendment 100 follows. Moved by Lord Avebury (2) After section 4C insert— “4D Acquisition by registration: legitimacy 100: After Clause 41, insert the following new Clause— (1) A person is entitled to be registered as a British citizen if— “Acquisition by birth of adoption: British nationals (1) The British Nationality Act 1981 (c. 61) is amended as (a) he applies for registration under this section; and follows. (b) he satisfies each of the following conditions. (2) In section 1(1), omit the words “on or after the appointed (2) The first condition is that the person was born before 1st day”. July 2006. (3) In section 1(1), after paragraph (b) insert— (3) The second condition is that the person is not already a “(c) a British Overseas Citizen, British citizen. (d) a British subject under this Act, (4) The third condition is that the father of the child satisfies any requirements as to proof of paternity prescribed under (e) a British Protected Person, section 50(9B) of this Act. (f) a British National (Overseas).”” 743 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 744

Lord Avebury: I imagine that this will be another “No one shall be expelled, by means either of an individual or amendment that we can bundle up in the discussion. of a collective measure, from the territory of the State of which he The first part will assist the small number of children is a national … No one shall be deprived of the right to enter the born overseas to parents who were British citizens by territory of the state of which he is a national”. descent, and were thus, as my noble friend has explained, Then there is the UN Convention on the Rights of the unable to transmit their nationality to their children Child, which says that the child shall have the right to born overseas where those children were born in a acquire a nationality. As we know, some children are qualifying territory in which the parents were not born stateless and many are born without the right to settled. “The qualifying territory” means the British enter the territory of the state to which they are Overseas Territories other than the sovereign base supposed to belong. areas of Akrotiri and Dhekelia. Thirdly, there is the European Convention on Nationality, with its provisions on the transmission of The amendment would not affect the children born citizenship to children. The UK withdrew its reservation to BDTCs before 2002, because they derive their British to this convention in 2008 and we invite the Minister citizenship from the British Overseas Territories to say—perhaps not now but in the course of the Act 2002. Nor does it affect whether the child has the discussions that we are looking forward to—what citizenship of the overseas territory. It is thus about changes in the law, particularly on the transmission of the situation only of British citizens who live overseas, citizenship to children, enabled us to do this. Are rather than those who are also British Overseas Territories British nationals other than British citizens our nationals citizens in their particular territory. or not? If they are, do the obligations that we have If that sounds complicated, and if some of the undertaken in international law have relevance? If things that my noble friend said sounded complicated, they are not, what are they, and when and by whom is I agree. I had an e-mail this morning from a lady who that determined? The noble and learned Lord, Lord said that she had three law degrees and, looking at Goldsmith, said in his review, Citizenship: Our Common what we said on Monday, could not make head or tail Bond, which I have already mentioned: of it. She has asked me to suggest to the Government, “If citizenship should be seen as the package of rights and and I do so most gladly, that they should produce a responsibilities which demonstrate the tie between a person and a wall chart showing each path to citizenship contained country, the present scheme falls short of that ideal”. in the law. That would make them a great deal easier to I hope that in the course of discussions with the noble follow for members of the public and those who have Lord, we will approach a little more closely to the to advise them, compared to trying to thread their way ideal. I beg to move. through the British Nationality Act 1981—particularly as the BNA 1981 does not include the amendments Lord Brett: Again, I am grateful to the noble Lord that we are considering in this Committee, although for setting out the reasoning behind his proposed new the Minister was kind enough to let us have the clause. When trying to get my head round this area—on Keeling schedule showing how that Act will appear as Monday I manifestly demonstrated that I had failed amended by the Bill. I leave that with the Minister as a to do that in some ways—I tried to do my own wall helpful suggestion from a member of the public who chart. I would not recommend my draughtsmanship has been trying to follow our proceedings. to anybody, but if that were possible, it would be The second part of the amendment would amend excellent; it might not be for wider dissemination but it Section 1 of the British Nationality Act 1981 so that would help at least those of us struggling with discussions the children of British passport holders, other than over the next few weeks. It fits well for the discussions British citizens born in the UK or a qualifying territory, that are coming and I endorse the route. are British citizens. British nationals other than British citizens have no right of abode by virtue of their Baroness Hanham: I have not been involved in these British nationality alone. They are in a weaker position amendments but I am a little puzzled about the procedure, than third-country nationals settled in the UK or an if they are all now taken away for further discussion. I overseas territory, and so are their children. The child understand that some of the cases raised by the noble of a person who is settled in the UK or an overseas Lord, Lord Avebury, and the noble Baroness, Lady territory is born a British citizen. It is a remarkable Miller, may require clarification. But most of the consequence of this Bill that, because probationary issues that have been raised are matters of principle, citizens will have limited, not indefinite, leave to remain, and they have been raised as amendments to the Bill. the children born to people on probationary citizenship After the discussions, what is the procedure for then will not be British citizens at birth and will have none deciding, first, whether these come within the ambit of of the rights and entitlements of citizenship. Thinking the Bill; secondly, whether Parliament is going to about that should help Members of the Committee to agree to the changes—if any—that will be made; and understand the position of British nationals other thirdly, how to dispose of the amendments that are than British citizens, whose British passports give now before us. I am always happy to see the Government them no right of abode in any country. talk to the Opposition, but I am a little concerned that Taking a quick canter through the international the procedure now seems to be extremely unclear. treaties that are relevant to this issue, there is, first, the European Convention on Human Rights, which the Lord Brett: The purpose behind the proposal for UK has signed but not ratified, because of the application discussions is that in each of the cases where we have of Protocol 4 to British nationals who are not British amendments to the proposed law, they derive in the citizens, including BN(O)s. Article 3 provides that: main from known cases that could not be dealt with 745 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 746 successfully under the law as it stands because the in favour of a particular small group, we think that as law was deficient or because of lack of discretion, a result of the discussions that we will have with the misunderstanding or whatever. I am attempting to Minister we will end up with certain amendments to resolve those issues. In technical terms the amendments the statutes that will bring in the small number of have been and withdrawn, and all can be resubmitted, persons involved in each case. along with any other amendment, at the next stage, We are not talking about the exercise of an individual which of course is Report stage. Having had our ministerial discretion in any of the amendments that discussions, I would be happy to ensure that the we have moved. We are talking about trying to persuade noble Baroness is aware of how far they have gone and the Government that these are matters that have to be what we have been able to achieve, in order that she dealt with by primary legislation or by order, although may then be able to come back and put forward there may be one or two cases—I am not conceding such amendments as she may feel are necessary, that; I am just speaking off the top of my head—where notwithstanding the fact that amendments in the name the exercise of discretion would be adequate. We think of the noble Lord and other members of the Liberal that in nearly every case we are going to have to Democrat Front Bench have been withdrawn. persuade the Government that some modification of the BNA will be necessary to give effect to the proposals Baroness Hanham: I should be grateful for that. It that we have made, even though they relate to a very would be helpful to distinguish between cases that small number of persons. For the time being, I beg need to be clarified and which may have been sitting leave to withdraw the amendment. around for a long time and principles. There are one or two principles here. I should be grateful to have that Amendment 100 withdrawn. enlightenment.

Baroness Howe of Idlicote: I emphasise the points Amendments 101 to 101B not moved. that have just been made. I have quite purposefully not entered into discussion on these clauses, because I Clause 42 : Children born outside UK etc. to members understand that they are all going to be looked at very of the armed forces sympathetically. I should like to be reassured that if some of these are going to come back because they have not been settled satisfactorily, rather more leeway Amendment 102 will be given to the discussion—more like a Committee Moved by stage type of discussion—on Report. Lord Thomas of Gresford 102: Clause 42, page 34, line 28, leave out from beginning to Lord Brett: It is not for me, but as I understand end of line 8 on page 35 and insert— procedure, Report stage does not allow for the reopening “(1) Section 2 of the British Nationality Act 1981 (c. 61) of debates that have taken place in Committee. I (acquisition by descent) is amended as follows. reiterate that it is for any Member of the House to (2) In subsection (1)(c) after “Communities” insert “; or table such other amendments for Report stage as they (d) is a member of the armed forces.”” so wish. The point is that there is a genuine attempt to move to resolve a number of difficulties that the noble 4.15 pm Lord and the noble Baroness have instigated and which, as they have said on a number of occasions, in Lord Thomas of Gresford: I am sure that we are all many cases involve only a small number of people having some difficulty in getting our heads around the who are seen by many to have been badly treated. That proposals that the Government are putting forward, is what they want to see investigated and resolved. but I am also sure that when it comes to the Armed Forces, the Government have good will towards members Lord Hylton: I am sure that we all appreciate the of the Armed Forces and are anxious that they should Government’s good will in trying to resolve certain be properly treated. I am pleased to see the noble questions affecting a small number of people. I am Lord, Lord West, in his place. As I pointed out on also sure that the Government know that it is possible Monday night, those eligible to serve in the British to recommit certain clauses in a Bill and deal with Armed Forces are British citizens, British nationals them pretty well at the same time as Report stage is other than British citizens, Commonwealth citizens taken. and Irish citizens. A person who is a member of the Armed Forces should know that children born to Lord Brett: That is perfectly correct. At this stage, I him or her will be entitled to British citizenship. just want to avoid jumping too far ahead. We have not Amendment 102 is a very simple amendment to the even commenced the discussions that all sides of the British Nationality Act. Committee think would be very useful to have. Clause 40, which we debated on Monday, was concerned with children born in the United Kingdom Lord Avebury: I am most grateful to other noble to members of the Armed Forces. Clause 42 is concerned Lords for those interventions. They highlight the fact with children born outside the United Kingdom or the that, although we are considering a small number of qualifying countries to members of the Armed Forces. cases, we have not conceded the proposition that they For some reason that I do not understand, a distinction can all be dealt with on a discretionary basis. From the is drawn between them. Clause 42 does not take the experience that we have had with Section 27(1) on the same approach as Clause 40 to children born outside Hong Kong issue, where discretion was not exercised the United Kingdom. 747 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 748

[LORD THOMAS OF GRESFORD] consider, first, for example, whether acquisition of Members of the Armed Forces, who are the people British citizenship would lead to the loss of another most affected by these provisions, are posted where citizenship that they feel is more important for their they are required—and that may not be within one of child to acquire. Secondly, even if there is no conflict the qualifying countries. Since they have to go when in regard to dual nationality and the domestic law of they are ordered, they have no choice. Families who another state, it is still possible that the parents may wish to be together at the time of their child’s birth nevertheless not wish their child to acquire British may be posted in some place that does not come citizenship. As a result, it is right that the parents of within the definition of the United Kingdom or the those born overseas decide what citizenship their child qualifying countries. Given these circumstances, on acquires. what basis have the Government decided to draw a distinction? If service in the Armed Forces of this The second and third amendments in this group country, which is a very worthy undertaking, entitles would allow a person to register as a British citizen children to become British citizens in one instance, under the proposed Section 4D if born in the relevant why should they not become so in the other? Why circumstances before commencement of the provision— should citizenship depend on where the family has that is, those born outside the UK and qualifying been posted at a particular time? I cannot see the territories where, at the time of the birth, at least one reason for that principle and I await with interest what parent was a member of the Armed Forces. Children the Minister will say. I beg to move. born in such circumstances are currently able to register as a British citizen at the discretion of the Secretary of The Chairman of Committees (Lord Brabazon of State under Section 3(1) of the British Nationality Tara): I should point out that if the amendment is Act 1981 following, in the main, their return to the agreed to I cannot call Amendments 103 and 104. UK with the family unit on conclusion of an overseas posting. Alternatively, those individuals who return to the UK, do not register as a British citizen while a Lord Brett: It was proposed to put all the amendments minor and remain resident in the UK can naturalise as in this area into the conversation and that is still a way a British citizen under Section 6(1) of the British forward, but I should do two things beforehand. First, Nationality Act 1981 when they are an adult. in discussing the previous amendment, the noble Lord indicated that he would allow no conditions to what It is also right to remember that the proposed he would commit to in discussions of that amendment. Section 4D, which Clause 42 inserts, is based on a The Government are not committing themselves either desire to remove obstacles to the acquisition of British ahead of that to make changes in the law. However, it citizenship for those born overseas to foreign and does need an understanding of why those conditions Commonwealth service personnel on active posting at were sought so as to allow a more sensible, temperate the time of birth. This is a government commitment and—in the eyes of some—more sympathetic decision made clear in the Command Paper presented to to be made. It might be useful to read into the record Parliament in 2008, The Nation’s Commitment: Cross- my response to the noble Lord and questions and Government Support to our Armed Forces, their Families answers can be taken afterwards in a more general and Veterans. This is principally to ensure that, as has discussion. historically been the case, the mother of the child does The Government would resist the amendment as it not need to travel to the UK when heavily pregnant in appears in the Marshalled List. The proposed amendment order to ensure that the child acquires British citizenship would remove in its entirety the proposed Section 4D. automatically at birth as a child born to a parent who The amendment proposes that British citizenship is settled for nationality purposes in the UK or qualifying otherwise than by descent be acquired automatically territories. Such a mother will instead be able to give at birth by any child born outside the UK to a parent birth to her child overseas and the child can be registered serving in the Armed Forces at the time of birth. The as a British citizen from abroad. This is what our proposed amendment would therefore deal with children foreign and Commonwealth service personnel want born to British citizens serving in the Armed Forces. and it will encourage ongoing service in our Armed However, this class of persons is already provided for Forces by removing current obstacles faced by the by Section 2(1)(b) of the Act which deals with British family unit. citizens serving outside the UK in Crown Service as Crown servants, including those in the Armed Forces. Persons born outside the UK to foreign and The proposed amendment would therefore in part Commonwealth service personnel since commencement replicate the effect of existing statutory provisions. of the British Nationality Act 1981 have been able However, I also understand that the purpose of the either to register as a British citizen when a minor on amendment may be to enable those born overseas to their return to the UK or to naturalise as a British foreign and Commonwealth service personnel to acquire citizen as a result of ongoing residence in the UK British citizenship automatically rather than by when an adult. For those who are still children but registration. We have elected to provide that citizenship have not yet been registered, Section 1(3) remains be acquired by registration under the proposed Section 4D open as an avenue to registration as a British citizen. because we believe that it is right to enable foreign and This means that no one is currently losing out. The Commonwealth nationals who are not themselves British proposed Section 4D is designed to facilitate the citizens to determine whether they wish their child to acquisition of citizenship by those yet to be born acquire British citizenship where that child is born overseas in the relevant circumstances. Children born outside the UK. This will enable those parents to before commencement already have routes to citizenship. 749 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 750

For those reasons, the Government are confident Lord Thomas of Gresford: What can I say? I will not that there is no strong argument for accepting the take it to the vote but if the principle is not clearly amendments. Further, when considering this matter, it stated on Report and we have not come to an is important to be conscious of the fact that the accommodation we will pursue the matter. For the majority of those posted overseas in the UK Armed moment I beg leave to withdraw the amendment. Forces are single men, the majority being in the Army, and that they travel alone and are without a spouse or Amendment 102 withdrawn. civil partner. We estimate that currently fewer than 200 children a year are born to a parent serving Amendments 103 and 104 not moved. overseas at the time of birth. Most of these have in any case been born in the UK and have acquired British Clause 42 agreed. citizenship automatically at birth. That is the reasoning behind the Government’s Clause 43: Good character requirement resistance to these amendments. However, as I said previously, were the amendment to be withdrawn, we think that it would be useful, if the noble Lord wishes, Amendment 105 to continue the discussion on this and other matters. Moved by Lord Avebury Lord Thomas of Gresford: I am afraid that I shall 105: Clause 43, page 35, line 29, leave out subsection (2) have to pursue the matter a little further because the Minister speaks at a pace, which makes it very difficult Lord Avebury: The amendment would remove Hong to follow. I want to take a simple situation. Let us Kong war wives and widows from the list of those who imagine that I am a Fijian member of the Armed must satisfy a good character requirement to register Forces of this country, playing rugby for a Scottish as British. The registration route to British citizenship regiment, as many of them do, and that I am posted to is designed for certain minors of a British parent born Edinburgh. My wife has a child in Edinburgh and outside the UK, people already holding a lesser form under Clause 40, that “person”, of British nationality and others with family connections “shall be a British citizen”. to the UK whose circumstances are treated as justifying There is no question of applying to register. The a less rigorous path to citizenship than naturalisation. suggestion that there is some conflict with dual nationality In the BNA 1981 the people in these groups are also and that another country may not allow them to do classified according to whether their members were to that does not arise in Clause 40. As that same Fijian be registered by entitlement solely on production of soldier, I may be sent to guard the embassy in Australia. evidence that the prescribed criteria were satisfied or I am not on active service but as part of my responsibilities by discretion, with a good character requirement added I am sent there. The Government allow my wife to go to the test by Section 58 of the IAN Act 2006. It was as well and we have a child. That child does not only in 2006 that we began to insist on the good become a British citizen by reason of membership of character test for any of these groups. the Armed Forces. The child has to apply for registration, Initially the Government applied the test to everybody and if over the age of 10, has to pass the good who was granted citizenship by registration under the character test. Immigration, Asylum and Nationality Bill of 2006 but It is exactly the same situation. The soldier has been we persuaded them to remove some groups from the sent to serve abroad, so what is the difference? In the list, such as the de facto stateless, British overseas five or 10 minutes that the Minister was talking I was citizens with no other citizenship and minors under hoping that he would elucidate the principle behind the age of 10. However, we know from Monday’s that. I cannot find one. I welcome the possibility of debate that some of the first of these categories are future talks and I will read in Hansard what the still out in the cold. Unfortunately, the Government Minister said and try to understand it, but I still do still left the Hong Kong war wives and widows in the not know the principle. If we are to reward list, although when the then Home Secretary, David Commonwealth citizens—if British citizenship is regarded Blunkett, introduced registration for this group as a reward—for serving in the British Armed Forces he said: by giving citizenship as of right to their children born “We are talking here about righting an historic wrong”.—[Official in this country, why do they not have the same reward Report, Commons, 5/11/02; col. 147.] if they are posted abroad? It is very simple: what is the difference? 4.30 pm We considered the groups that were entitled to Lord Brett: I apologise for the speed of my delivery. register as of right in an amendment to the 2007 Bill, It is partly a cultural inheritance of coming from the and in her reply, the then Minister, the noble Baroness, north—we speak quicker—partly nervousness on my Lady Ashton of Upholland, told us that, part, and partly because I have a cold. However, those “when we consider groups such as the wives and widows of those reasons are no excuse for not making myself clear to who fought in the defence of Hong Kong, we believe that we have the Committee and I apologise for that. brought them all into the system in one way or another”.—[Official The noble Lord set out an example and posed a Report, 6/2/07; col. 621.] question that I cannot answer with confidence in They were women who had received a UK settlement detail now, but I will of course write to him on the letter from the Secretary of State confirming that, in matter. If it is written it can be clearly understood. recognition of their husband’s or late husband’s service 751 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 752

[LORD AVEBURY] Amendment 105 withdrawn. in defence of Hong Kong during the Second World War, they could enter the United Kingdom for settlement Clause 43 agreed. at any time. In an Act sponsored by the noble Lord, Lord Willoughby de Broke, in 1996, these wives and Amendment 105A not moved. widows had been given the right to register as British citizens. There was no requirement then, or for the next 10 years, that they would have to pass a character Clause 44: Meaning of references to being in breach of test. Today, the UKBA says that, at most, there are immigration laws some 53 of them still alive. They were not brought into the system, nor was any explanation given by the Minister about why these very elderly ladies should be Amendments 106 and 107 subjected to the indignity of the test. I hope noble Moved by Lord West of Spithead Lords will agree to take them off the list. 106: Clause 44, page 37, line 10, at end insert— Baroness Hamwee: I support this amendment. This “(ca) does not have a qualifying CTA entitlement;” seems to be the most curious inclusion in the BNA of 107: Clause 44, page 37, line 21, at end insert— a very small number of people. However, we are not “( ) For the purposes of subsection (4)(ca), a person has a talking about individual decisions, but about the principle. qualifying CTA entitlement if the person— The principle here is wrong, and I am therefore glad to (a) is a citizen of the Republic of Ireland, support the noble Lord. (b) last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from Lord Thomas of Gresford: I strongly support my the Republic of Ireland, and noble friend in this amendment. It seems disgraceful (c) on that arrival, was a citizen of the Republic of Ireland that this Government should ever have brought this and was entitled to enter without leave by virtue of provision forward. section 1(3) of the Immigration Act 1971 (entry from the I shall tell noble Lords a little bit about Jack Edwards. common travel area).” He came from Cardiff and served as a sergeant in the Army during the Second World War. He was captured Amendments 106 and 107 agreed. by the Japanese in Singapore and was held in Japanese camps for a long time. When he was released, he made Clause 44, as amended, agreed. it his business to seek out war criminals. It was as a result of his efforts that he discovered the only surviving copy of a Japanese order to massacre all prisoners of Clause 45: Other interpretation etc. war if the allies landed on the Japanese home islands. Jack Edwards then moved to Hong Kong, where he was chairman of the British Legion and much involved Amendment 108 in tireless efforts to obtain monthly pension awards Moved by Lord West of Spithead from the British Government for ethnic Chinese veterans and their widows. In 1996, he fought for and won the 108: Clause 45, page 39, line 2, at end insert— granting of British citizenship to the wives and widows “( ) A person has a qualifying CTA entitlement if the person— of those veterans. We are told that there are about (a) is a citizen of the Republic of Ireland, 53 of them left. I met Jack Edwards; indeed, he was (b) last arrived in the United Kingdom on a local journey patron of the Hong Kong Welsh Male Voice Choir. I (within the meaning of the Immigration Act 1971) from declare an interest as I followed him as its patron and the Republic of Ireland, and have sung with it in the Sydney Opera House and the (c) on that arrival, was a citizen of the Republic of Ireland Royal Albert Hall. I therefore have a personal interest and was entitled to enter without leave by virtue of in Jack Edwards, who unhappily died in 2006. He was section 1(3) of the Immigration Act 1971 (entry from the married to a delightful Chinese lady—Polly—who I common travel area).” met at the Armistice service the year before last. Why should these 53 widows be asked to pass a Amendment 108 agreed. good character test? They must be in their 80s and 90s, and there are probably far fewer than 53 of them. I Clause 45, as amended, agreed. regard it as an insult that a clause of this sort should be put into the Bill, presumably as a result of a desire Clause 46 : Common Travel Area for bureaucratic tidying up of the legislation relating to the good character test. I am sure the Government will, on reflection, remove it from the Bill. Amendment 108ZA Lord Brett: I shall keep my response short, if not Moved by Lord Shutt of Greetland slow. A powerful case has been made. I have the brief. 108ZA: Clause 46, page 39, line 20, at end insert— The sensible thing is for the Government to reconsider “( ) In section 1 of the Immigration Act 1971 (c. 77) (general the issue, and I give that commitment. principles: the common travel area) after subsection (2) insert— “(2A) Arrivals by land from the Republic of Ireland to the Lord Avebury: I am most grateful to the Minister United Kingdom shall not be subject to immigration control and have pleasure in withdrawing the amendment. under this Act.”” 753 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 754

Lord Shutt of Greetland: I am making an unexpected clearly those stopped under enforcement operations guest appearance in Committee on the Bill. I ask will be expected to satisfy UK Border Agency officers noble Lords to bear with me, as I was given the brief at that they are British or Irish citizens by producing the last minute. Both my colleagues on the Northern passports, national ID cards or otherwise, as will Ireland team were hoping to speak to the amendment non-CTA nationals. The clear question, in the context but cannot do so. of ethnic diversity, is: will those policing the land The common travel area has been very much part border be able to tell who is a British or Irish citizen of my life. In 1946, I was taken as a child to the Isle of and who is not? Who, on indicating that they are not Man. I have been there in most years since, and carrying particular travel documents, will be allowed 20 years ago my wife and I bought a cottage in the to proceed and who will be subject to further examination Republic of Ireland, so I am very much aware of the and even detention until identity is verified? common travel area as it affects these isles. Experience of these actions, in the form of Operation In effect, the clause abolishes the common travel Gull, has been that immigration officers have carried area by removing the provision that means that persons out investigations on a discriminatory basis. On a departing from or arriving in the UK from within the number of occasions, the High Court has criticised the common travel area are not subject to immigration practices of immigration officers in cases involving controls. Since its advent, the common travel area has Operation Gull which have come before them. The been suspended only during World War II. Even at the speed and secrecy under which Operation Gull is height of the Troubles in Northern Ireland in the carried out results in individuals being unable to access 1970s and 1980s, the common travel area was maintained. independent legal advice that would be able to determine The rationale given by the Government for these changes whether they have been detained lawfully. One of the is set out in the impact assessment of the recent chief concerns is that individuals could be questioned consultation on strengthening the common travel area. under Operation Gull on grounds of ethnicity or However, little empirical evidence is provided to support nationality, irrespective of their intentions. or explain the need for the changes, which seem to be The proposed powers in the CTA consultation will unconnected to the reality of the situation on the only increase the likelihood of Operation Gull-type border between the UK and the Republic of Ireland. operations. It is essential that the circumstances in There is also an expressed intention to increase the which such checks may be made are carefully defined, number of intelligence-led ad hoc immigration checks to avoid establishing a broad power of internal on the land border. In practical terms, Clause 46 immigration control. We are concerned that these means that immigration officials can challenge an measures could have a disproportionate impact on individual whom they suspect of not being in compliance ethnic minority persons crossing or even just living with immigration rules to prove their nationality. This and working near the land border. The potential outcomes will apply not only to those travelling by sea and air of these circumstances would mean that an ethnic but to those stopped by an ad hoc immigration check minority person would constantly have to carry identity near the land border. As this power can be applied to papers or face frequent questioning regarding their any individual, including British and Irish nationals, it status. will mean that those living in the border area could be A number of cases came before the Northern Ireland subject to frequent immigration checks on any journey High Court, the most recent of which was an application near the border and could therefore feel compelled to for judicial review by Jamiu Olanreaju Omikunle, a carry identity with them on all journeys. Nigerian student who had obtained a proper student Given our concerns about the basis for the intelligence- visa and was unlawfully detained by immigration officers led operations, we are concerned that this pressure at Belfast International Airport on a local journey. may be felt most strongly among the ethnic communities The court held that he was detained unlawfully. He living on or near the border and by individuals from had recently been awarded a significant amount of these communities contemplating travel between Northern money in compensation for his unlawful detention Ireland and the Republic of Ireland. This amendment and the appalling treatment to which he was subjected aims to prohibit explicitly the practice of immigration while in detention. checks on land crossings of the border between the Approving this provision will endorse such UK and the Republic of Ireland. discriminatory policies where ethnic and racial profiling We are extremely concerned at references to mobile is at the core of their rationale. The significant number checks being made on a risk-led basis. The CTA of people being adversely affected by Operation consultation proposed the introduction of, Gull prompted the Northern Ireland Human Rights “ad hoc immigration checks on vehicles … to target non-CTA Commission to conduct an investigation into the nationals”. implementation and conduct of this operation. We The Home Office has subsequently stated that such understand that the Human Rights Commission is checks would be intelligence-led on persons both arriving soon to report its findings in relation to its investigation. in and leaving Northern Ireland. The Government The Government’s attempt to introduce this provision have not set out what criteria will be used as the basis at this stage is to neutralise its findings. for these operations or set out transparent monitoring We would also like a reassurance from the Government to ensure that they are not relying on racial profiling. that they do not intend to make checks on those While the Government have stated that no fixed travelling between Northern Ireland and the rest of passport or identity document will be required for the United Kingdom. The measures proposed in the British and Irish citizens to cross the land border, Bill mean that UK citizens in Northern Ireland will be 755 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 756

[LORD SHUTT OF GREETLAND] requiring British citizens to carry identity documents subject to travel controls that are not imposed on UK at all times in case they stray over the border to go citizens travelling from one region of Britain to another, shopping, buy petrol or countless other legitimate as journeys across the border from Northern Ireland everyday purposes in order to prove who they are. into the Republic are as common as journeys from That is a very unsatisfactory way to sneak in ID England into either Scotland or Wales for those living checks on British citizens by their own Government. along the Welsh or Scottish borders. It would be What will happen, for instance, to those people who completely unacceptable for the Government to place are stopped but have not remembered to put their controls on British citizens travelling from Belfast to identity papers in the glove box of their car or their the rest of the UK. pocket? Will they be detained on the spot, followed home, made to report to a police station later or 4.45 pm simply waved on their way? Moreover, the powers of examination detailed in If we swallow the argument that these stops will be Schedule 2 to the Immigration Act 1971 refer to and carefully targeted, we must ask how that will be done. are understood as usually applying to aircraft and I have also seen the briefing from the Northern Ireland ships, and air and sea ports respectively.The Government, Human Rights Commission, referred to by the noble through regulation, can determine otherwise. However, Lord, Lord Shutt, and I agree with the point that it in relation to the CTA, they have not indicated an makes. There is a great danger that the targeted checks intention to do so and such a move would contradict will focus on people who look a bit different or foreign. the stated objective of not introducing fixed control Is that compatible with the noble Lord’s statement on requirements on the land border. This contradiction the front of this Bill that this is, would also emerge if the Government pursued the “compatible with the Convention rights”? extension of examination powers to international railway If the security and intelligence services have a genuine stations and trains, and even in-county, without exempting suspicion that someone is up to no good, it has ample CTA routes. powers at its disposal already for dealing with them. Presently in Northern Ireland, international railway The Government have utterly failed to explain this stations would include Newry, Portadown, Lurgan, measure, which will inconvenience thousands of people Lisburn and Belfast Central, all of which are served by going about their lawful business and will not make the Enterprise express between Belfast and Dublin, the borders any more secure. which crosses the land border, as well as being used for That raises another point. Why are the Government journeys within Northern Ireland. If the Government’s proposing border checks into Northern Ireland on an intention to effectively extend the definition of a port ad hoc basis, but making those into Great Britain to international rail did not exempt the CTA, this mandatory? What, exactly, is the threat posed to the could introduce passport control, control areas and people of the British mainland from which they must e-Borders to these stations. None of this is referenced be protected, and why are British citizens in Northern as planned in the present CTA reforms. We would like Ireland to be deemed less at risk from that threat? Why the Government to assure the House that they are not would Northern Ireland need only ad hoc border planning to operate such checks. The Home Office has protection if Great Britain needs stronger protection? given clear indications that there will be no passport If, as my noble friend Lord Glentoran suggested at control on the land border for CTA nationals, despite Second Reading, this Bill is to protect the Great stating its intention for CTA passport control to be Britain border and not the United Kingdom border, introduced only on air and sea routes. That is not why will the Government not at least be open about it? explicit in the Bill and is what we hope to achieve with Bearing that in mind, will the Minister please spell this amendment. I beg to move. out the future position of British citizens seeking to travel from Northern Ireland to Great Britain on an Viscount Bridgeman: I support the amendment entirely domestic journey? Will they be subject to in the name of the noble Lord, Lord Shutt. The immigration controls to compensate for the ad hoc or Government’s utterances on identity checks at the non-existent controls on the land border? These border between Northern Ireland and the Republic government proposals are likely to be so ineffective in have been unclear. In truth, that reflects either muddled their stated aim that either they have not been thought thinking by the Government or a reluctance to come through or are paving the way for an entirely different clean about what they are planning. The Government and more far-reaching measure. I will be most interested have said that there will be no question of establishing to hear the Minister defend this clause, but at this full-scale checks on the border, which reflects the stage I support the amendment from the noble Lord, practical and political impossibility of doing so. Instead, Lord Shutt. we will see ad-hoc checks, which we have been assured will be intelligence-led and carefully targeted, a point Lord Teverson: I have not been much involved in made by the noble Lord, Lord Shutt. this Bill, but I take a great interest in freedom of I do not consider that very reassuring at all. How movement, within Europe and the common travel will this work in practice? If people travelling across area, and this provision quite astounded me. Many the border are to be stopped at random, how will they British citizens take the common travel area for granted, prove that they are British or Irish citizens, or otherwise in some ways—when they go to Dublin, perhaps, or have a right to be in the country? If the checks are when British citizens within Northern Ireland travel entirely ad hoc, they will not know when these checks within the island of Ireland—but it does not generally might take place. In other words, the Government are receive a great profile. The common travel area is, 757 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 758 however, extremely precious. It has a long historic immigration and terrorism had arisen. That is why base and reflects a close relationship between the we have come up with various amendments to the Republic of Ireland and the United Kingdom. 1971 Act. The group of amendments following this one might Amendment 108ZA would restrict the power to go more profoundly into Clause 46, but when starting control persons travelling across the land border, which to read about this I took out the Immigration Act 1971 would undermine the purpose of the CTA reforms—as from the Printed Paper Office, to try and understand I said, we have gone to great length to discuss that what this clause does in relation to it. I found great with the Republic of Ireland—and prevent the UK difficulty in following it through, but although I could Border Agency carrying out effective controls on this not understand this entirely from the legislation, I route. That would prevent important improvements in noted that the Explanatory Notes produced for the our ability and flexibility to combat illegal immigration, Bill say, in referring to Clause 46(1), that: terrorism and wider crime. “This amendment will enable the routine control of all persons arriving in or departing from the UK via the CTA by aircraft or As has been stated by noble Lords, political and ship”. practical considerations—we all know this—mean that Perhaps this amendment is not necessary, because if fixed controls on the land border are not a viable the notes are true it is somehow suggested that the new option. It is clear that they are impractical. I have been provision does not include travel over land, but only on patrol there enough times. It is quite easy to get lost “by aircraft or ship”. That seems entirely illogical if it and end up drinking in a pub in the Republic of is true, so I will be interested in the Minister’s explanation Ireland rather than Northern Ireland because it is of the Explanatory Notes. such a difficult border. We have made it clear that we Clearly, it makes no sense at all to control access to will not introduce routine border controls on the land the United Kingdom by aircraft or ship if we do not border between the Republic of Ireland and Northern control it by the land border as well. Anybody wanting Ireland. We have also made it clear that we will not to enter Great Britain who we would not want here require persons to carry a passport or national identity but who is already in, say, the Republic of Ireland— document on this route—I shall come back to that although I understand that this would also include the shortly—but we may want to check that a person is Channel Islands and the Isle of Man—will clearly just entitled to enter the United Kingdom without leave travel by land to Northern Ireland, and thereafter by where we have intelligence that they might be entering air or ship on an intra-United Kingdom journey. I do unlawfully. We will not collect e-Borders data on those not understand this to be giving any extra security or who cross the land border, although we will do so for control to us as British citizens, let alone to those of those who travel on aircraft or ships, as e-Borders will other jurisdictions within the CTA. spread to all aspects of ship and aircraft travel. We have made it clear that Clause 46 is only part of a I will be interested to understand from the Minister process of reform of the CTA and that we will consider exactly what benefit this provision has, at the expense further the approach to intelligence-led, risk-based of starting to erode strongly something that we should operations to tackle illegal movement over the land view as precious: the right of all citizens within the border as part of the wider simplification of immigration CTA to travel freely and without hindrance. As my law. However, we are committed to retaining the CTA. noble friend Lord Shutt said, that was never seen It is an incremental process. It is the first step in as something that should be restricted during the making us safer and resolving some of the loopholes. Troubles, and I see no reason why it should be the case now. I was asked by the noble Lord, Lord Shutt, and the noble Viscount, Lord Bridgeman, about the intelligence Lord West of Spithead: I should make it clear at the operations. The controls will not be fixed. We shall not outset that there is absolutely no intention to abolish ask every passenger arriving to present their passport the CTA. Indeed, we do not believe that anything in to an immigration officer. We will target those who the Bill goes anywhere near to doing that. The CTA have no entitlement to enter the UK who we think has been important and valuable to us in the past and pose a threat. We will use information obtained on the will be in the future. air-sea routes between the Republic of Ireland and the As the noble Lord, Lord Teverson, mentioned, we UK through our e-Borders system and other available are coming on to a series of other amendments on this intelligence. clause, so I might not go into as much detail on this The noble Lord, Lord Shutt, asked about ethnic- amendment as on them. There is also a clause stand minority communities, which are clearly an issue. part question as well. Passengers are selected very much on the basis of The Bill looks at the common travel area because direct intelligence and risk, drawn from a number of we have found that a large number of people are sources—to which I shall come. No passengers will be slipping through the hoop, with some very real risks selected on the basis of race, and we are developing and problems. Therefore, when I was asked after the operating procedures, intelligence audit trails and ethnicity attacks on Tiger Tiger and Glasgow Airport in 2007 impact assessments to ensure no negative impact. We to look at a number of issues, I flagged up elements of do not employ racial profiling. Under the land border border control. We were able to draw on work that had operation on the quieter roads, we often stop a whole gone on in dealing with loopholes in the arrangements number of vehicles. That is not possible on the main with the Republic of Ireland whereby some unpleasant Dublin-Belfast road, so we target the odd bus, minibus and nasty people had been moving backwards and or taxi, because our experience has shown that those forwards, and problems relating to crime, trafficking, are much more likely to be a threat. 759 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 760

[LORD WEST OF SPITHEAD] passport and identity card. We will introduce phased The noble Lord, Lord Shutt, mentioned Operation intelligence-led immigration controls on this route, in Gull, which has highlighted to us the huge number of the same way as we do on other routes, tying in with problems and difficult cases that we have. In the e-Borders. Practical and political considerations mean operation, we asked passengers for identification. Ninety that routine immigration controls and/or the collection per cent carry passports, even though they do not need of e-Borders data is not a viable option. to. We asked the remaining 10 per cent questions I hope that that answers the bulk of the questions about their nationality and their UK immigration that were asked. We are committed to retaining the status. We verified that by checks with CID, WICU, CTA, and I hope that on that basis the noble Lord will CRS, Irish records, and fingerprint checks on the agree that the amendment is unnecessary and will feel QuickCheck, re-interviewing the people concerned as able to withdraw it. appropriate when there were discrepancies. We found that a skilled immigration officer can weigh up a person’s nationality and status very quickly through a Lord Shutt of Greetland: I thank the Minister for mixture of good interviewing, IT and mobile databases, his response. I was slightly worried about the word and a bit of common sense—which is sadly lacking, “incremental”. As a Yorkshireman I thought, good very often—both on the border and in Operation heavens, is Lancashire next? I worry about that word Gull. The Irish, of course, do exactly the same in “incremental” in all forms of legislation. It is also reverse when they are checking persons entering Ireland slightly worrying that the noble Lord, Lord West, in who have no passport, so it is not an unusual thing going to Dublin, was challenged. If those very clever to be done. people, in looking for those who might be up to ill will, spotted the Minister, it seems very strange indeed. I always thought that the whole business of passports 5pm and aeroplanes was more to do with the proprietors of It is worth mentioning that we have included refugee the airlines, such as Ryanair. They want a simple life travel documents, because we are aware that there so they just say, “Bring a passport—bus passes won’t might be a number of Tanzanian refugees living along do”. As the Minister said, it goes against the grain, as some of the border areas. We have done that to ensure so much of this does. However, for the moment I that that is covered. withdraw the amendment, and colleagues and I shall The noble Viscount, Lord Bridgeman, asked about look carefully at his response to consider matters for checks made on those travelling by air and sea from the next stage. Northern Ireland to Great Britain. This is not covered in the CTA reforms, as it is a domestic journey, like a Amendment 108ZA withdrawn. journey from, say, London to Liverpool. Persons are, therefore, not subject to immigration control. Section Amendment 108A 14 of the Police and Justice Act 2006, to which the noble Lord rightly referred as enabling us to do certain Moved by Baroness Hanham things, introduced a new power that would allow the 108A: Clause 46, page 39, line 23, after “in” insert “or departs police to capture passenger, crew and service information from” on air and sea journeys. That is exactly the same sort of data that we are getting for our e-Borders. We will Baroness Hanham: I apologise again because my launch a separate consultation on domestic travel noble friend Lord Glentoran is unable to be here and requirements in due course to cover that. my noble friend Viscount Bridgeman has to leave for a On the travel documents needed to travel between short time. I move Amendment 108A and speak to the Republic of Ireland and the UK by air and sea, we Amendments 108B, 108BA, 108C, 108D and Clause 46 will require all persons, including those who are British stand part, all of which belong together. I will speak to and Irish, to prove their identity and nationality with a Clause 46 stand part with other noble Lords because, passport or national identity card. Interestingly, I flew unless the Government can persuade us of its merits, into Dublin about 10 days ago to have some talks with we see no justification for Clause 46 standing part of people and for other reasons, and I had to produce a the Bill. There are many reasons for this. It is partly passport on that occasion. That seemed to go against because of the very high cost, with benefits unknown the grain of what has been said here—but it is hardly but probably negligible; the practicality of implementation; surprising, when there are so many nasty and unpleasant the lack of consultation; and the Government’s confused people around, that one sometimes has to prove one’s thinking in this area, which does not seem to warrant identity. the endorsement of your Lordships’ House or inclusion On the land border, we will not introduce fixed or in the Bill. routine controls, or a document requirement, as a The amendments that we have tabled to this matter of policy. The noble Viscount, Lord Bridgeman, clause would have, I hope, the effect of reversing the asked on that specific point. Government’s perceived proposals to abolish the common What are we doing to secure Northern Ireland? All travel area, although the Minister says that this is not passengers travelling internationally to and from Northern the Government’s intention. The Official Opposition Ireland will be subject to the same requirements to are in favour of retaining and strengthening a travel provide data as the rest of the United Kingdom. That arrangement that has served the people of the British means that on air and sea routes between the Republic Isles very well for almost a century. The clause would of Ireland and Northern Ireland, they have to carry a end passport-free travel between the United Kingdom 761 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 762 and the Republic of Ireland, the United Kingdom and subject to immigration control, and the cost of that the Isle of Man, and the United Kingdom and the can be seen both in the Government’s impact statement Channel Islands. There was some discussion of this on and in the correspondence that I have received along the previous amendment. with other noble Lords. I turn first to the Isle of Man and the Channel The cost of implementation, according to the impact Islands. These three self-governing dependencies are statement, could be as much as £75 million and that referred to as the Islands. They are sometimes referred will mainly fall on the tourism industry. Is it clever in to as the British Islands for the very good reason that any circumstances, particularly in the current economic they are dependencies of the Crown and are inhabited, climate, to affect the tourism industry in that island? for the most part, by British nationals. As my noble Thousands of people will presumably find that they friend Lord Glentoran asked at Second Reading, in need a passport to visit friends, family and colleagues what possible way will putting up a barrier between where before they did not. Have the Government the United Kingdom and these islands help to protect considered the knock-on costs on hauliers, ports and our borders? It really is not enough for the Government the countless businesses that rely on them? to give an assurance that any checks will be on an ad Again, the impact assessment rather damningly hoc basis, as indeed the Minister just has again. If the cannot put any figure at all on the benefits to be power is there, it is there to be used. accrued under this clause. That speaks for itself. Any We have seen correspondence from the Isle of Man claims that this clause will improve the United Kingdom’s Government and the States of Jersey that makes clear security sounds rather unlikely given that this measure their opposition to this clause. There is a long-established was not deemed necessary even in the security crisis of protocol that the Islands will be consulted on changes the 1970s and 1980s. If the Government are serious to UK immigration laws. To my knowledge, they have about wishing to protect our borders, our citizens’ way always adapted corresponding provisions. Perhaps the of life and our good relations with our only land Minister will be kind enough to tell the Committee neighbour, they would engage constructively with the why the Government did not bother to consult the Republic of Ireland and with the Islands to construct Islands about the changes proposed in this Bill. There a secure e-Border system that would encompass the are constitutional issues here, which the Government whole of the British Isles and allow free travel therein appear to have failed to address. The Bill makes without unwarranted and costly intrusion from the no distinction whatever between the constitutional state. We do not believe that this clause is justified and relationship between the Islands and the relationship we believe that its removal would make this a better with the Republic of Ireland, which is, of course, Bill. I beg to move. entirely different. Was this was just a simple difficulty in the drafting, or a failure by the Government to Lord Hylton: It must be clear to the Government by think through this proposal? now that there is widespread concern about Clause 46 The main thrust of this clause is, I suspect, aimed at and the details of it. However, I should like to mention the border between the United Kingdom and the my experience of the last time that I flew to Belfast Republic of Ireland. We would not be able to guess at from London in November last year. I was asked to the reasons, although the Minister has outlined some produce photo identity. Was this under some power or of those in dealing with the previous amendment. legislative authority or was it just overzealousness on What will the Government gain from intervening in the part of the airline? the common travel area, which has survived the Second To ensure that Northern Ireland is not being World War and the Northern Ireland Troubles? The discriminated against, what is the position—last year CTA is an internal immigration arrangement and and this year—with regard to flights or trains to and nothing more. By messing around with it the Government from Scotland? Is photo identity required for such will not magically shut down the flow of illegal goods journeys? or change the face of illegal immigration to the UK. They will simply hinder the free travel of British and Irish citizens. Lord Shutt of Greetland: I will speak to the two amendments in this group in the name of my noble The impact assessment produced by the Government friend Lord Smith. Amendment 108CA deals with explains in Section 2.6: visas. Given the benefits that the common travel area “Notwithstanding the principle of free travel within the CTA, has brought to the UK and the Republic of Ireland, it is not lawful for a person who is not a British Citizen to enter we would be in favour of legislation that formalised the UK (including the Crown dependencies) where their presence the increase of transparency in the common travel was unlawful in another part of the CTA, unless they are given area. For that reason, we support moves to introduce a leave to enter. The practical effect of this is that if someone with common visa system or a system of mutual recognition valid leave in the UK or Islands travels to another part of the CTA, and their leave subsequently expires, and that person then of visas between common travel area members. For returns to the United Kingdom or Islands without obtaining that to be effective and just, it should apply to those in further leave, that person becomes an illegal entrant. This enables the common travel area on long-term visas and be enforcement action to be taken when appropriate and reduces the easily affordable for those applying. risk of abuse within the CTA”. Such a system should include not only short-term In other words, the lack of an internal border has no visas but the right to rely on a residence permit issued magic effect on the rights and entitlements of those in one state in order to travel to the other. That would under immigration control. The most dramatic effect be of use to many including those on long-term study of the reimposition of controls will be on those not visas or who work within the border regions. Furthermore, 763 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 764

[LORD SHUTT OF GREETLAND] may holiday at home or in the common travel area, if a system of mutually recognised visas or a common and not go to more exotic places. This measure would visa were in place, there would be no need for the leave put a dampener on that. to be endorsed. I will deal with one other area. Reference has been The Republic is currently working on its own e-Borders made to the Isle of Man. As I indicated, I have had a programme. In the light of this, we feel that it would love affair with the Isle of Man since 1946. The Isle of be more appropriate for the Government to work Man received the draft Bill on 18 December, with the closely with the Irish Government effectively to draw a First Reading due on 14 January. It seems that there line around our two islands and allow the free flow of was very little notice. I do not understand that, because movement between them. To that end, will the checks under the Belfast agreement there was to be something be relaxed if a complementary system of e-Borders called the Council of the Isles. The Channel Islands, and visa checks is developed between Ireland and the Isle of Man, the Republic of Ireland, Northern the UK? Ireland, Scotland, Wales and England would all be represented in the Council of the Isles. Has this subject 5.15 pm been taken to the Council of the Isles? I cannot think Amendment 108CB concerns various forms of identity. of anything more suitable for a discussion there than Clause 46 will allow immigration officials to challenge this. If it has not been discussed by the council, the an individual whom they suspect of not being in Government should frankly withdraw it and have compliance with immigration rules to prove their proper discussions, and then consider these matters. nationality. This will apply not only to those travelling by sea and air, but to those stopped by an ad hoc Lord Teverson: I admit that I favour the proposition immigration check near the land border. This power to remove the clause altogether, although I agree with can be applied to any individual, including British and my noble friend’s suggestion of a common visa policy. Irish nationals. Clearly, there will be a considerable In a broader context, the Bill clearly says that the UK socio-economic impact on CTA nationals who travel Government look upon the Irish Government as incapable between the UK and Ireland and who do not have of properly managing their own borders. The common passports or identity cards, because they will now have travel area should revolve around both those jurisdictions to purchase them. being able to sensibly and effectively keep out people A friend of mine recently decided to leave home who are not supposed to be there. Instead, we seem to and get married. He was of mature years, but because have an attitude of, “Well, that’s not going to work he lived at home, he did not have gas bills in his name. properly. We don’t trust that system and must therefore He has never driven a car and he has never been bring in something else”. But that something else abroad. He had great difficulty in getting a mortgage. clearly cannot work effectively; it is incapable of The whole business of identity is important. One can doing so. see how this can be replicated, with people having to I agree entirely with a common visa system between understand their identity and prove it. those different jurisdictions in the common travel area. Communities on the border will be affected, especially But let us be plain about it. Even though I am sceptical those near sea crossings and where tourism is a cross- about how effective we can make all our borders, if we border pursuit by virtue of the proximity between the feel that the Republic of Ireland cannot come up to north and south of Ireland. The lakes of Fermanagh what we require for e-Borders, perhaps we should say straddle the two jurisdictions and are major tourism so. However, this is not an answer to that. destinations both in the Republic and Northern Ireland. Without destroying my own argument, my solution It would be severely inconvenient for people there to would be for both Ireland and the United Kingdom to have to carry identification. There could be a particularly join the Schengen acquis. That would be far more significant impact on ethnic minority communities in effective. Although a government Minister has recently these locales. The impact of these measures will be said that that is not on the agenda at the moment—I disproportionately felt in Northern Ireland. It is our was interested to hear “at the moment”—I understand belief that they will impact negatively on levels of that that will by no means be a practical solution trade and tourism. within the timescale of the Bill; it is not currently a I turn now to the clause standing part. The UK politically feasible solution. However, I see this as Border Agency’s figures suggest that implementing throwing something valuable away and replacing it these measures would lead to an economic cost from with something that just cannot work. loss of tourism revenues of up to £12 million in the first year. However, it is not clear where the figures come from, or to whom they apply. Is the Minister Lord West of Spithead: I should first make it clear able to elaborate? Does this cost apply to tourism in that, in speaking to this group of amendments, I do the UK, Northern Ireland, England, Scotland, Wales, not regard the decision whether Clause 46 should the Isle of Man or the Channel Islands? Have the stand part of the Bill to be consequential on any Government had any discussions with the Irish decision on Amendments 108A, 108B, 108C, 108CA, Government about the potential impact on tourism? 108CB or 108CD. I am sure, however, that this has The tourism industry is one of the most important been a helpful opportunity to have a wide ranging sectors of the Northern Ireland economy, and to debate on the issue raised by Clause 46. introduce a measure that could damage it in current I begin by outlining why we are making these economic circumstances is quite irresponsible. One changes. We do not go and make changes for no effect of the downturn in the economy is that people reason, just to rock things up for everyone and be a 765 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 766 bloody nuisance. We do them for reasons. We have We accept that there is not the same need for made clear the value that we attach to the political, heightened supervision of routes from the Crown economic and social benefits of the common travel dependencies to the UK as there is on routes from the area. We are committed to maintaining the common Republic of Ireland. We have no intention to introduce travel area, and preserving those benefits. However we routine controls on routes from the Crown dependencies, know that the current CTA arrangements are being but we want to continue to treat the CTA as a single abused. So do the Irish, because we have had long entity and to maintain a secure platform for the range talks with them. So do the people in Northern Ireland, of intelligence-led activities which will be necessary at because we have talked with the Administration there different times and in different places within it. We do as well. not think we can readily differentiate provision for the Part of the reason that I said that we need to do Crown dependencies without prejudicing those aims—in something when I looked at this in 2007 is that we have other words, without prejudicing the status of the become more aware that serious organised criminals CTA. Clause 46 leaves intact the broad framework for are using the CTA to facilitate their criminal activity, the CTA contained in the Immigration Act 1971, illegal migration and trafficking. We were aware, from including the general provision that those arriving on the clear evidence of Operation Gull, of immigration local journeys do not require leave to enter. abuse between the Republic of Ireland and the United The Crown dependencies were consulted at length. Kingdom. The sorts of numbers that we are talking Part of the problem is that, after all the consultations, about are just under 4,000 immigration offenders. they were a little surprised when they saw the legislation This is possibly just the tip of an iceberg. as it stood. We will have to talk to them a little more There is also clear evidence of abuse of both the about exactly why we have done this, because we United Kingdom’s and Ireland’s asylum system, where believe it is important to keep the CTA as it stands. persons who have lodged a claim for asylum in one Amendments 108A to 108D would provide that country then travel to the other and make a further persons both arriving and departing from another claim. part of the common travel area are not subject to control. Amendment 108CB would widen the forms of Lord Avebury: Surely the Eurodac computer system acceptable documentation for travel on air and sea would prevent that. Everybody has to have their routes between the Republic of Ireland and the United fingerprints recorded in the first country of asylum. Kingdom. A passport or national identity document When they go to the second country and their fingerprints provides the most secure way of establishing nationality are compared with the Eurodac database, it is found and identity, and it ensures that carriers may discharge that they have already applied in another country. It their legal responsibility to transmit valid passenger cannot happen. data. The requirement to carry a passport or national Lord West of Spithead: I am afraid that that does identity card is consistent with practice on all other not stop it from happening. As I say, we have found international routes, and we think that accepting less that there are cases of this, which is why we have secure forms of documentation will threaten our border discussed it with the Irish. The noble Lord looks security. The noble Lord, Lord Shutt, gave a very puzzled by that, so I will get back to him in writing on good argument as to why identity was so important—it that point. He would be amazed how people get was also a very good argument for why we should have around the little systems in place. We are clear that identity cards, so I thank him very much for that. there is abuse of the system. Amendment 108CA would allow those who have I will come to costs in a little more detail later. I am been issued visas in the Republic of Ireland to enter not sure how accurate those costs are, as the figure I the UK without leave. We do not think that this is the had quoted was about £7 million for tourism costs. correct approach. Instead, we will continue to work The noble Baroness and a number of others raised closely with the Government of the Republic of Ireland, that. The key thing is that we are doing these things and the Crown dependencies, to secure the external because a lot of rules are being broken and a lot of CTA border and explore the merits of a common visa dangerous people are involved in it, which causes a lot with the Republic of Ireland. of harm to innocent people and puts us at risk. The All of these amendments would undermine the noble Baroness, Lady Hanham, mentioned that in the clause and prevent the UK Border Agency from carrying 1970s and 1980s, when some terrible things were going out effective border controls on air and sea routes on in relation to Northern Ireland and the Troubles, between the Republic of Ireland and the United Kingdom, there were an awful lot of other provisions in place at preventing important improvements in our ability to that stage. I was involved in some of those, and they flexibly combat illegal immigration, trafficking, terrorism helped us a little more. A lot of those things have been and other wider crime. dismantled, for various reasons. I will now deal with the Question whether the Amendment 108BA would remove the islands—that clause should stand part. The UK already has some is, the Crown dependencies—from Clause 46. That of the toughest borders in the world. The e-Borders would mean that a person coming from the islands programme has tracked 80 million passenger movements, would, unlike now, require leave to enter. This would leading to 34,000 alerts and almost 3,000 arrests, and treat the Crown dependencies differently from the we have brought forward the timetable for the full Republic of Ireland; they would be treated less favourably. roll-out of e-Borders, including to the CTA. I think the intention is to ask why the islands are The UK will continue to work closely with the subject to Clause 46, and that is the point I will Irish—as we have done—to tackle the major issues address. that face us today, from trafficking and terrorism to 767 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 768

[LORD WEST OF SPITHEAD] officer that they are CTA nationals. These changes illegal immigration and drug smuggling. As I say, will align our immigration procedures on intra-CTA these are real worries because there is a chink there routes more closely with those of the Republic of that is being exploited by the bad guys. As I have said Ireland. Similarly, these reforms will align the UK’s before, we want to continue to treat the common travel CTA immigration controls more closely with its customs area as a single entity, and Clause 46 leaves intact the controls. UK customs controls already operate on broad framework for the common travel area that has routes between the Republic of Ireland and the UK existed since its inception in the 1920s. and the Crown dependencies and the UK, with the We have made clear the value that we attach to the exception of routes from the Isle of Man to the UK. political, economic and social benefits which the CTA The modest change in the Bill will allow important brings. We are committed to maintaining the CTA and improvements in our ability to combat illegal immigration, preserving those benefits. But we have reviewed, and terrorism and wider crime. It should be considered as we will keep under review, the practical operation of one aspect of the wider reform of the CTA which will the CTA, to ensure that we maximise protections preserve its special nature. Those aims of improving within it and that our arrangements remain fit for security while preserving the benefits will guide our purpose. We committed to review the arrangements of consideration of any further reforms. We must also the CTA in the 2007 “Securing the UK Border” recognise the facts of geography. The practical challenges strategy and the Security in a Global Hub report from of introducing routine border controls on the land the Cabinet Office, and this stemmed from my reviews border would entail costs that outweigh any theoretical in 2007. gain. As with a lot of counterterrorism, you could expend our national wealth on it, and it has to be 5.30 pm risk-based. That is not on the agenda. Lord Shutt of Greetland: I have listened quite carefully. Some have tried to argue that there is no point in If the Minister gets his legislation, what is special having the new controls on air and sea routes between about the common travel area? What does it mean any the Republic and the UK which we propose if they are more? not replicated at the land border or on journeys from Northern Ireland to Great Britain. But our aim is not Lord West of Spithead: There will still be considerably uniform and impregnable defences, which are of course greater freedom of movement than there is in moving unachievable. Our aim is to change the odds and make from nation to nation outside the common travel area. life significantly more difficult for people who are The border will effectively be that around the CTA, trafficking, illegal immigrants, other criminals and which is the bit that we are really strengthening greatly; terrorists. Variable, selective and intelligence-led action so there will be a difference. It will be different from can be particularly effective in doing that; we know flying to and from the US. that historically. CTA reform needs to be considered together with all the other things we are doing to Lord Teverson: I do not understand what the difference strengthen our border and immigration systems both is between flying from London to Dublin and flying now and in the next few years. from London to Brussels. The e-Borders programme is particularly relevant as it will be the platform used to collect data. The Lord West of Spithead: You will carry exactly the platform will collect and analyse passenger, service same things with you on the plane, because you have and crew data provided by air, sea and rail carriers in to have a way of identifying yourself. It is based on the respect of all international journeys to and from the principle that, once a person has been granted leave to United Kingdom in advance of travel. That will allow enter one part, they will not normally require leave to resources to be targeted on those intending harm to enter another part of it while that leave is extant, and the UK or to deceive the UK authorities, while enabling provided they do not leave the CTA, this will not the majority of bona fide passengers to continue their change. That will still stand when they are inside journey with minimal disruption. The e-Borders platform the CTA. will receive and process travel document information We have now reviewed the arrangements of the for 100 per cent of passenger and crew movements by CTA and committed to implement a number of key March 2014. Under e-Borders, it is the responsibility reforms. Clause 46 of the Borders, Citizenship and of carriers to submit passenger information via pre-defined Immigration Bill is the first step in taking these reforms interfaces to the operations centre in advance of travel. forward. We have been talking with the Republic of The legislation will mean that passengers on air and Ireland about these things. sea journeys from the Republic of Ireland to the UK We are clear that we are not abolishing the CTA. will need to hold travel documents that satisfactorily The CTA is based on the principle that once a person establish identity and nationality so that carriers may has been granted leave to enter one part, they will not discharge their legal responsibility to transmit valid normally require leave to enter the UK while that leave passenger data, regardless of whether an immigration is extant and provided they do not leave the CTA. This control is being exercised on that particular route at will not change. that time. Since 1997, the Republic of Ireland has maintained Outside the CTA reforms we are also considering an immigration control on third country nationals other changes. Under Section 14 of the Police and arriving directly from the UK, including flights between Justice Act 2006, the police have the power to require Northern Ireland and the Republic of Ireland. British carriers to provide passenger data on specified domestic and Irish passengers are obliged to satisfy an immigration air and sea routes. That power could be extended to 769 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 770 cover routes between Great Britain and Northern thing—please excuse my unparliamentary language. Ireland. Those routes offer the most suitable screening The point of doing it is to get at the criminals and the and intervention opportunities to address vulnerabilities terrorists, but there will also be an impact on tourism, from those crossing the land border between the Republic although exactly what that impact will be is not quite of Ireland and Northern Ireland but we are not proposing so clear-cut. Perhaps I may write with the details setting up immigration controls on this route or requiring because the figures are not very precise, but it is appropriate passengers to carry a passport or national identity that we should look at that. A balance has to be struck. document. If the cost is £7 million, for example, we have to ask The Police Service of Northern Ireland and other whether the extra safety that we will get as a result of UK police forces would then be able to use data the measures that we are taking is worth that £7 million. collected to support intelligence-led interventions to If there are any questions that I have not covered, counter terrorism and tackle serious and organised perhaps noble Lords will get back to me and I shall try crime such as trafficking. to respond to them in writing on the specific points. The Government have yet to complete consideration The noble Lord, Lord Teverson, raised the question of of when the 2006 power to capture data on Northern Schengen. As I said, there is no intention of our being Ireland-Great Britain routes would be introduced. We part of that or of going in that direction at the intend to consult in the spring, with the consequent moment. I think that we have more effective and secondary legislation—for affirmative action—being secure borders because we are not part of it, and that taken forward in autumn 2009. is a good thing, bearing in mind some of the risks that there have been in the past. I was asked many questions and will address some of them now. The Irish are fully supportive of our As I said, I do not regard the decisions on Clause 46 reform plans. The noble Lord, Lord Teverson, asked to be consequential on a decision on the amendments, whether that means that we do not trust them. I would and I should be very grateful if the noble Baroness put it the other way, because the Irish are very keen on would withdraw the amendment. receiving the data from us: on that basis, perhaps they do not trust us. Let us put it differently: we both want Lord Brooke of Sutton Mandeville: Perhaps I may to be absolutely certain what movement is happening make a brief intervention. I have taken an interest in because some of the bad guys are coming from us, the subject of security amid these islands and have from Northern Ireland to the Republic. The programme alluded to it during this Committee stage. I did not is there to obtain a handle on how bad they are and speak to the amendments moved by my noble friend what they are doing. Lady Hanham because I realised the Government’s The noble Lord, Lord Shutt, asked whether the motivation behind this clause and therefore gave them plans had been discussed with the Council of the Isles. the benefit of the doubt until I had heard their case. My right honourable friend Phil Woolas has written to However, I make one small warning on a matter the British-Irish Inter-Parliamentary Body and the which the noble Lord mentioned in his concluding British-Irish Council about our proposals. remarks, and that relates to the British-Irish Inter- I think I have covered why we were operating a Parliamentary Body. It was founded in 1990, arising different policy on the Republic of Ireland and Crown out of the Anglo-Irish agreement, and the unionists dependencies routes. The Republic of Ireland operates were not prepared to join it because that was its origin. its own separate immigration control and the Crown My noble friend Lord King of Bridgwater, who had dependencies are in practice very closely aligned and been Secretary of State in Northern Ireland at the operationally integrated with those of the UK. Of time that the agreement was signed in 1985, served on course, international routes into the Crown dependencies the body from 1992 to 1997, when I took his place and are very limited. served until 2007. On the Crown dependency-to-UK route, we will The body has been an outstanding success in improving increase the frequency of intelligence-led controls and relations and reducing suspicions between Members we will not introduce fixed or routine controls or a of this Parliament and Members of the Dáil. After the document requirement to come from there. We have Belfast agreement, we were joined by elected been in negotiation with the Crown dependencies. All representatives from the Isle of Man and the Channel I can assume is that this was not quite what they had Islands, the Scottish Parliament and the Welsh Assembly. expected to come out of the prolonged negotiations I understand that the unionists are now to join the and we must have more discussions with them. body, which is a good index of improved relations within Northern Ireland, but ironically it occurs at the On consistency with Ireland’s approach, I have already very moment when the body is wondering what its mentioned that since 1997 the Republic has maintained purpose will be from now on. At least in the short immigration control on third-country nationals. term, I congratulate the Government on having given In response to the noble Baroness, Lady Hanham, a raison d’être to the body, which is shortly to meet for the impact statement considers all impacts of public, one of its semi-annual plenary sessions in County private and third sectors. I have a very comprehensive Donegal—a meeting which may well occur before this breakdown of the costs and so on, and perhaps I may Bill concludes its passage through this House. The write to her and others who are interested in seeing body meets alternately between the Republic and Great them. Britain. There will be an impact on terrorism—I mean tourism. The one cautionary word that I utter is that, if this I certainly hope that there is an impact on terrorism Parliament has had difficulty in knowing what the because that is the whole point of doing the bloody Government are about, it may well be that, when the 771 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 772

[LORD BROOKE OF SUTTON MANDEVILLE] Clause 47: Restriction on studies group that I have described comes together in County Donegal within the next month or so, it will have the same degree of ignorance of exactly what is happening. Amendment 108E I mention quietly—the noble Lord will already have Moved by Baroness Hanham realised this—that, because it is on Irish soil, it will be Irish Ministers who answer the questions. 108E: Clause 47, page 39, line 32, at beginning insert “where leave is granted for the purpose of studies in the United Kingdom,”

Baroness Hanham: I thank my noble friend for that Baroness Hanham: We now move to the other “stray” helpful intervention. I feel very inadequate as he has a clause in the Bill. I shall also be speaking to great deal more experience of Northern Ireland than Amendments 109 to 110A, and Clause 47 stand part is probably many of us here today, except those who live included in the group so that we can have a wider there. I am grateful to him. discussion on what is proposed. I have two questions. I tell the Minister now that I I oppose the clause as it stands as there are not shall withdraw the amendment but I shall come back enough safeguards on what the Government are doing, to it on Report because I think that there are still too so I shall give a brief outline of each amendment. many issues outstanding here. At least two of those Amendment 108E would restrict the power to impose concern the amount of consultation that has taken a condition regarding studies so that it could be imposed place. The Minister says that there has been a great only on migrants who had been given leave for the deal of consultation with the Government of the purposes of study rather than anyone with limited Republic of Ireland, who are in favour of it, and I have leave to enter or remain. Amendment 109, which is a nothing that gainsays that. However, I am a little probing amendment, would limit the condition on perturbed when he says that he feels that they should studies that could be imposed on someone with limited probably talk to the Council of the Isles to try to leave to enter or remain, thereby allowing the imposition reassure it about what is being proposed. It ought to of a condition that tied the person to study at a have been reassured before the measure was put particular institute. Amendment 110 would require forward—it is too late. Our information is that the the Secretary of State to consider immediately any consultation process with the islands was not adequate. application to vary a condition regarding studies, and I hope that by indicating now that I will come back to Amendment 110A would ensure that these conditions this, perhaps by the time we get to Report the Minister could not be imposed retrospectively. will have been able to ensure that at least proper discussions have been undertaken with the island The amendments would improve the clause and authorities so that they are clear and support what is assist with the intention by ensuring that the scope of being done in their name. the power properly matched its stated intention. In other words, it would allow the permission granted to I am also interested that the British-Irish Inter- overseas students to be linked to the particular institution Parliamentary Body will be discussing this in a month’s that sponsors them under the points system. time. Presumably the group has not discussed it before. Again, one would have thought it to be a major body When the Minister replies, will he confirm that if a to give consideration to the issue. student wishes to change a course within his sponsored institution, he will be able to do so without having to There is concern about the Government’s proposals. appeal again or make a new application to the UK The Minister said that the common travel area is not Border Agency? Clause 47 appears to allow for any being dismantled but it depends how you define the condition to be imposed restricting the studies of common travel area. If it is to give unfettered movement anyone with limited leave to enter or remain in the between one country or countries and another, clearly United Kingdom. This could include restrictions that that is being put in jeopardy by these proposals. The would tie a foreign student to a particular institution Minister has said a great deal about the bad guys; and require it to inform the UK Border Agency of a there have always been problems within Ireland and wish to change institution for the purposes of sponsorship elsewhere and difficulties with people coming into this and regulation of the points-based system. It could country. Indeed, I remember the Troubles very well also include restrictions on any migrant with limited and the problems there, but at that time there was still leave to remain or enter, including those who are pretty much freedom of movement. I am not convinced undertaking, or wish to undertake, studies, who are that the measures are justified. It would be helpful to not here as foreign students under the point-based have a little more idea of how deep the consultations system, migrant workers, those joining partners or have been, particularly with the islands, and perhaps other family members and refugees. for us to have some idea of what the Irish Government feel, although the Minister said that they were in I should like to see Clause 47 work effectively and favour. For today’s purposes, I beg leave to withdraw to its purpose. For that, students must be sure of the amendment. where they stand—hence our amendment on retrospectivity. They must be sure that in any dealings Amendment 108A withdrawn. they have with the Home Office if they wish to change their studies within an institution—I hope the Minister will tell me that that is not necessary—or to change Amendments 108B to 108D not moved. institution, it will deal with those applications speedily and efficiently. I have previously raised concerns that a Clause 46 agreed. student can get stuck on a course that is wrong for him 773 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 774 because he cannot get a decision from the Home always as easy as that. I was lobbied on my way home Office that would enable him to change his course or the other night by a woman who used to be my institution and he would require sponsorship by the Alexander technique teacher and who is currently new institution. Can the Minister give me assurances training Alexander technique students from Latin about how those applications will be handled and that America. It takes two to three years to train them they will be done with some speed? through an apprenticeship, and one of her immediate The Minister will recognise, as we do, that the huge concerns is precisely Clause 47. majority of overseas students come here to study and, I therefore register the unhappiness throughout the by doing so, to enhance their own learning, skills and higher education sector at this whole process and abilities and that the reputation of this country relies, would like reassurance that there has been very full to some extent, on their view of what happens when consultation in government with what I think we are they come here. Many of them bring with them, as now supposed to call DIUS—no doubt it will have a they have to, financial assistance to those institutions different name in a couple of months—and effective in the form of substantial fees. We must get right the consultation with Universities UK. balance between the need to ensure that people coming to this country to study are bona fide and making it impossible for them to change their course if they are Baroness Finlay of Llandaff: I declare an interest on here. If someone suddenly finds that he does not want behalf of Cardiff University and its courses and as a to be a consultant engineer but a doctor, we must make co-opted member of the Medical Schools Council. I clear that that can happen, the process by which it can apologise to the Committee for not contributing at happen and the fact that it can be done in a timescale Second Reading; there was a clash of timing with which will enable him to move from one course or other legislation. position to another within the ambit of time that The amendment raises very important points and would enable him not to get left behind for too long. highlights concerns that have been expressed about the clause. I will confine my remarks to medicine. Lord Wallace of Saltaire: I declare an interest as a Students entering to study medicine at Oxford, Cambridge retired academic, although I still have a number of or St Andrews have no idea when they enter where PhD students, some of whom have not completed they will do their clinical studies after their first three their PhDs in the requisite preferred three-year period. years. In fact, where they go depends on how they Happily, at the moment, I have none from outside the perform in those first three years, so it is completely European Union, but several of my colleagues at the unpredictable. London School of Economics do. I recognise this The other difficulty is that the courses are for six clause as an old friend. We have been through this over years. At the end of the six years, the students have to many years, and my first question has to be whether enter a pre-registration year. Although they are paid the Government have fully consulted Universities UK and employed, they still fall under the supervision of and whether Universities UK has expressed itself happy the undergraduate dean. At the end of the pre-registration with this. On previous occasions over at least the past year, the Medical Act requires the undergraduate dean 10 years, we have had problems when those in Government to state that the student is fit to be fully registered. The concerned with higher education have taken one view length of the undergraduate course alone does not and those in the Home Office concerned with stopping determine the completion and registration of a medical overstayers have taken an entirely different view, and it degree. Without being registered—they are registered has been clear that there has not been a coherent with the GMC—their degree has very little currency. government position. I hope that that is not the case now. The other problem is often that they do undergraduate We recognise that there is a problem with overstayers. studies and then wish to progress on to postgraduate Nevertheless, we also recognise that, given the nature studies. Indeed, they come to this country in the first of research degrees and the quality of research in this place because that type of training is simply not country, it is very difficult to tell people that they will available in the country in which they have been, spend only three years examining a particular problem. because the places are so restricted or because there Very often, when you start out on a research degree, it have been restrictions against the ethnic group to is very difficult to say how long it will take. Over the which they belong in their country of origin. years, we have seen limitations on how long people are As the noble Baroness, Lady Warwick of Undercliffe, allowed to enter for and rising costs for renewing their outlined at Second Reading, the amount of money visas when the time comes. We are putting obstacles in that is brought into this country is not inconsiderable. front of bright young people who want to study in She estimated that it was more than £100 million. I Britain. think that that is probably an underestimate, because Many of us have argued that the answer had to be postgraduate students come over as well. Those who in the registration of institutions since, as I have come over as postgraduate students present a different understood on several occasions, the problem has set of problems. We now have an increasing number of been most acute with fly-by-night colleges or second-floor distance-learning courses. The students come across colleges setting themselves up as the London college for study days but do a lot of study in their own of whatever it is that attracts people in from obscure country on their own clinical base. They then come parts of the world. It would have been, and remains, back for their exams and to graduate. They may be on relatively easy to sort out which are genuine institutions such a course, which is a part-time course, for up to six of further and higher education and which are fly-by-night years. The length of time will depend to some extent operations. I am conscious, however, that it is not on how quickly they progress through the course and 775 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 776

[BARONESS FINLAY OF LLANDAFF] Commonwealth education Ministers would be there to some extent, as they are adult learners, on what so he suggested that we should have a one-day follow-up other life events intervene that cause them to require and I was exposed to the problem in an extremely an interruption of study. When they are the lead in vivid way. their specialty in their own country and they want to I understand Governments’ 20-year balancing act undertake postgraduate study abroad, it takes very between ensuring that recruitment to our higher education little to make the workload insurmountable, leading institutions was reinforced and their concern about to them having to take a temporary leave of absence individual controls. Hence, I understand the logic of from their course. the amendments which my noble friend Lady Hanham has tabled. However, for 24 years, I was a central 6pm London MP, in a constituency which had a large One difficulty for students on a distance learning number of language schools. Are students in language course is how much they have to guarantee the schools, but not in higher education, covered by this maintenance. Perhaps I may refer to the course that I legislation? I assume that they are because I see no run which takes students up to MSc level. If they wording to suggest that they are not, but it would be come across for a study week, will they have to guarantee helpful to have that confirmed. that they have maintenance funding for that week In that regard, over that quarter of a century, I had when they have already enrolled in a course of study? a huge postbag of immigration cases. I was conscious During this debate, we have heard much about how often Lunar House and the Home Office, on the those of mal-intent, but I do not think that we should one hand, and the language schools, on the other, underestimate the economic, cultural and scientific totally lost track of students who had arrived at a advantage to this country of many of the students language school and might well have disappeared into who come here. We are in very stiff competition for the larger community. I am sympathetic towards, and those students with other parts of the world, particularly supportive of, what the Government seek to do. I also the USA and Australasia, but increasingly with other wholly understand the questions raised by my noble countries, particularly in the Far East. The current friend. economic climate means that any students have to be very careful about the fees that they pay and the Lord West of Spithead: First, I declare an interest: I obstacles which are in their way to coming here. am chancellor of a university. It is interesting to see In summing up, I ask the Minister to confirm that how many Members of the Committee are involved in all these points have been considered in discussions education, which, in many ways, I find reassuring. that he has had with Universities UK, to inform the Committee how extensive his discussions have been Lord Wallace of Saltaire: We are the biggest lobby with the Medical Schools Council and to say how in the House, as we have said. postgraduate students on distance learning courses in particular would be affected by this clause. Lord West of Spithead: I thank the noble Lord for that warning before I say anything else. Lord Brooke of Sutton Mandeville: Once a year, In speaking to this group of amendments, I do not when I was in the private sector, I used to attend one of regard the Question that the clause stand part to be the remarkable futurology courses put on by the great consequential on any decision on Amendments 108E, Herman Kahn, who was a remarkable polymath. On 109, 110 and 110A. I have listened very carefully to a one such occasion, I recall him saying that he thought wide range of points made in the debate on the that the United Kingdom did not need to have great amendments and more generally on the clause. I must concern about the post-industrial society because there resist the amendments, but I want to go into the were areas of skills and learning in which we were reasons very carefully. I do not apologise for going deeply impressive on a world scale and one of those into detail in this longish script. I went through it in was education. great detail with my team to ensure that it answered For a long time, I have been conscious of the most of the questions. I think that is useful for Hansard campaign to get students to come to this country. I and the Committee. was directly involved as higher education Minister Members of the Committee may be aware that we between 1983 and 1985 when full-cost fees for overseas have reconsidered the proposed policy for tier 2 with students were introduced. The legislation for full-cost regard to the maximum length of leave. We have fees was deliberately ambiguously defined, but not changed our policy and will now grant a tier 4 general quite enough use was made of that ambiguous definition student studying a course at degree level or above leave by some of the higher education establishments. to enter or remain for the duration of their course, as I also attended the Commonwealth education under the current system. I think this is a significant Ministers’ conference in Nicosia in 1984, which frankly change and one which makes a lot of sense. I am was a rerun of the Battle of Rorke’s Drift, as far as the grateful for the conversations I have had with a number British Minister was concerned. Mr Ramphal, who of Members of this Committee in reaching this decision. was then the secretary-general of the Commonwealth I am sure noble Lords will appreciate that the change Secretariat, saw an opportunity. Normally the is intended to ensure that international students wishing Commonwealth education Ministers met every four to study comparatively longer courses, such as medicine, years, but UNESCO was meeting in Sofia the following are not deterred from coming to the United Kingdom year. Mr Ramphal reckoned that most of the to undertake their studies. 777 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 778

Thus, I hope I have provided the House with sponsor, supplementary employment that is outside of reassurance that flexibility in the rules allows the his normal working hours and voluntary work. We Government to make very rapid decisions such as this. envisage that the condition this clause will allow us to This is a fundamental part of the points-based system impose on a migrant in relation to his studies will but, for understandable reasons, primary legislation is operate in much the same way, with the Immigration needed to underpin certain aspects of the system. Rules specifying where these restrictions will apply, Clause 47 is thus essential to the operation of tier 4 as clearly stating that the restriction will be in relation to it allows for the control of foreign students once they where the migrant studies and will be imposed on have entered the United Kingdom to study at a licensed those granted leave to enter or remain under tier 4. institution. As I explained earlier, a student applying for leave It is the Government’s intention that the restriction to enter or remain under tier 4—the general student on studies would be placed on those migrants granted category of the points-based system—will be granted leave to enter or remain as tier 4 migrants; that is, leave for the duration of their course. With such students. Furthermore, such a restriction will restrict a potentially long grants of leave that will cover a student’s migrant to studying at a specified institution, rather entire course, it will be of even greater importance that than restricting their chosen course of study. I say to we make clear the procedures a student will need to the noble Baroness, Lady Hanham, that I can provide follow should he wish to change to a new institution. an absolutely clear and unequivocal reassurance to the I must resist Amendment 110 because I am confident Committee that the Government do not intend to use that the revised guidance, which I will address shortly, this provision to prevent students from moving courses that will be published when we make changes to the within the same sponsoring institution. By imposing a Immigration Rules in order to impose this condition restriction on a migrant, so that he can study only at a on tier 4 students, will specify exactly what a student specified institution, he would have to apply to the will need to do if he or she wishes to change institution, UK Border Agency to vary the conditions of his leave in terms of the requirement for him to submit a new should he wish to change institution. This will allow application to the UK Border Agency. The revised the UK Border Agency to check that the institution to guidance will also make clear the likely timeframes for which the migrant wishes to move is a bona fide consideration of an application, so that a student is education provider, with a sponsor licence. Having the able to submit his application to allow him to take up ability to link a student to a particular licensed institution his studies at the new institution in good time. is integral to the successful operation of tier 4, the student tier of the points-based system. I also think it would be inappropriate to specify in primary legislation that this type of application merits I note that these amendments seek to probe why the more prompt consideration than any other type of Government believe the clause should provide a broad application for leave to remain as Amendment 110 power to restrict a person’s studies. I understand why suggests. Other applications for leave to remain may Members of the Committee may wish to restrict this have equally or more compelling reasons for immediate power further so that, on the face of the Bill, we are consideration, and for which a migrant is paying a fee very specific about what this restriction means and on and expecting similar high standards of customer whom it may be imposed. service. However, it is usual practice for the overall architecture Provided a student meets the points requirement of the immigration system to be set out in primary for tier 4, which he will be able to do by having a valid legislation, with the Immigration Rules containing the visa letter from a UK Border Agency-licensed sponsor detail of how the power will apply. While I appreciate and by meeting the maintenance requirement for extension that noble Lords may have their reservations about applications, the application to change institution should this approach, the ability to amend the Immigration be relatively straightforward and therefore considered Rules, rather than having to amend primary legislation, within our published service standard timescales for is an essential tool which is vital to ensure that necessary postal and in-person applications. legislative changes can be implemented quickly and The border force aims to decide 70 per cent of effectively, as shown with the point I mentioned about postal applications within 4 weeks, 20 working days, the maximum length of stay for people doing a study. and 90 per cent within 70 working days. In addition, As Members of the Committee will be aware, we albeit subject to higher application fees for a premium take seriously our duty to consult widely before making service, the border force aims to decide 90 per cent of changes to the Immigration Rules and, more often applications made in person at a public inquiry office than not, our rules have been prayed against to allow within 24 hours. the opportunity for debate in the House. With that in Turning to Amendment 110A, we believe that mind, Clause 47 was deliberately drafted in this way in amending the clause in this way will seriously undermine order to achieve consistency with the wording used one of the key parts of tier 4 of the points-based in relation to the imposition of other conditions under system, essentially creating two distinct categories of Section 3 of the Immigration Act 1971—in particular, student; namely, those granted leave to enter or remain the condition restricting a migrant’s employment or under tier 4 before enactment of this clause and those occupation. granted leave under tier 4 after enactment. Let me first Under the skilled-worker tier, tier 2, of the points-based make clear to Members of the Committee that the system, the Immigration Rules set out the conditions provisions of subsection (2) are not retrospective. While on a migrant’s employment, including a restriction on we wish to be able to add the condition to all those taking any employment other than with his licensed who have been granted leave as a tier 4 student, if such 779 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 780

[LORD WEST OF SPITHEAD] Applying this condition to all those granted leave a student changed institution between the launch of under tier 4 will make it much simpler for all such tier 4 and Royal Assent, without notifying the UK students to understand what is required of them when Border Agency of this change, he would not be subject changing institution. It will be easier for the education to prosecution under Section 3(1)(c) of the Immigration providers that advise their students on what they will Act 1971, nor would he be subject to removal under need to do when seeking to change institution. Applying Section 10(1)(a) of the Immigration and Asylum Act the condition across the board to all tier 4 students 1999 for breaching his conditions of stay. will mean there is just one process for all. I do not Furthermore, there is no intention to impose this apologise for going through that background because condition on any of the students already in the United it is important to understand where we are coming Kingdom under the terms of the current student rules from. that will be deleted on the introduction of tier 4. Only The noble Baroness, Lady Hanham, asked how those students that UK Border Agency-licensed education applications will be considered. Provided the student providers bring to the UK under tier 4 from the end of meets the points’ requirement for tier 4, an application March, or those existing students who will need to to change institutions should be very straightforward apply to extend their leave to remain under tier 4 after and will be considered within our standard service its launch in March, will be subject to this condition. timescales, which are clearly laid out, and I touched It may be helpful to the Committee if I explain how on them earlier. The noble Lord, Lord Wallace, asked we will implement this condition. As soon as we have whether we have fully consulted with Universities UK. secured Royal Assent, it is our intention to amend the Yes, we have consulted it on this provision. Officials at Immigration Rules, specifying that in addition to the the Home Office and the UK border force have regular conditions restricting a student’s employment, we will meetings with Universities UK to consult on tier 4 of also add a further condition restricting the student to the points-based system. studying at the educational institution that is acting as The noble Lord, Lord Wallace, and the noble Baroness, the student’s sponsor under tier 4. As is usual practice, Lady Finlay, asked about PhD students. As now, we the Immigration Rules will be laid before Parliament will grant leave for the duration of the student’s course, for 21 days before coming into force, and we will look as specified by the sponsoring education institutions. to publish revised guidance for tier 4 students around If a PhD student does not complete his course within what this change will mean for them when we lay the this time period—I know that happens because, goodness rules. me, they really go on sometimes—he will be able to apply for an extension of his leave. The revised 6.15 pm maintenance requirement for extension applications Once the rules are in force, the UK Border Agency recognises the progress that a student has made to will write to all migrants who had been granted leave date without recourse to public funds. to enter or remain under tier 4, informing them that The noble Baroness, Lady Finlay, mentioned distance they will, from the date of the letter, be subject to this learning. Students coming to the UK for short periods condition. Hence, the condition will apply only from of study and do not intend to work will be able to when the student is notified. At the same time, we will come as student visitors. That route sits outside the also inform these students of the potential consequences points-based system and does not require the same of any subsequent breach. Once subject to this condition, sponsorship and maintenance requirements as under a tier 4 student would need to apply to the UK Border tier 4 because they may only stay for up to six months Agency to vary the conditions on their stay before and cannot work. The tier 4 requirements do not moving to a new institution. apply. The noble Lord, Lord Brooke, asked whether If we were not able to apply this condition to those students in language schools were in higher education. granted leave between the launch of tier 4 at the end of The answer is yes; students who intend to study are March and enactment of the clause, there would be a counted within this category. pool of students who could move institution without I hope that that covers most of the extra points. our approval throughout the duration of their stay. Perhaps Members of the Committee will come back We have revisited the policy on the maximum length to me if there is anything that I have not covered and I of leave a student may be granted so that he may be will get back to them in writing. I hope that this granted leave for the full duration of his course, which response deals with the Question that Clause 47 should could be five, six or even seven years in some instances. stand part of the Bill and I would be grateful if the It is vital that the conditions of stay are applied noble Baroness would withdraw her amendment. equally to all students in the United Kingdom under the new system. If this were not the case, genuine students would risk being duped by bogus colleges Baroness Finlay of Llandaff: I am most grateful to which may charge high fees for non-existent courses. the Minister for having addressed those points. One These colleges damage the UK’s excellent reputation outstanding point on which I would appreciate for education provision abroad, which has been referred clarification is that of foundation year 1, which comes to by a number of speakers, not least the noble Baroness, after sitting finals but before going onto the medical Lady Finlay. The noble Baroness referred to value. register. I feel it would be appropriate to give notice These students are of great value to the United Kingdom, that I have tabled a Question relating to this for both culturally, as has been said, and financially, to tomorrow, and I will pursue this further then. the sum of £2.5 billion in tuition fees alone last year. That is a very significant amount of money and it is Lord West of Spithead: I am afraid that I do not very important for this nation. know the exact answer to that, but I shall by tomorrow. 781 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 782

Lord Wallace of Saltaire: I thank the Minister for that extremely helpful and constructive response. I Amendment 111 would be certainly be willing to withdraw my opposition to Clause 47 standing part, subject to the noble Baroness, Moved by Lord Avebury Lady Hanham, doing so, but I wish to stress a few 111: After Clause 48, insert the following new Clause— issues further. The bogus college issue has been with “Fingerprints and samples taken under port and border controls us a long time; in this House, we have been round it for powers 10 years or more. There have to be other ways to get at (1) The Terrorism Act 2000 (c. 11) is amended as follows. it. It is relatively easy, when our missions abroad (2) In paragraph 14(2) of Schedule 8, for “The fingerprints” consider visas, to tell them which are the reliable substitute “Subject to sub-paragraph (2B), the fingerprints”. further and higher education colleges and which are (3) In paragraph 14 of Schedule 8, after sub-paragraph (2A) not. That is always raised by the Home Office in this insert— context, and it is not half such a difficult problem as “(2B) Fingerprints or samples taken from a person detained under Schedule 7 must be destroyed within one month after the some others. date on which the fingerprints or samples were taken, unless the We all wish to emphasise that effective co-ordination person has given his or her written consent to retain the fingerprints between the Home Office and the Department for or samples beyond this period. Innovation, Universities and Skills is an important (2C) Sub-paragraph (2B) does not apply to fingerprints or part of this process. One cannot stress too much that non-intimate samples taken under paragraph 10(4)(b).”” at the top end of our education market, dealing with visiting students sympathetically is important in a Lord Avebury: On Friday 31 October, I had a telephone host of ways. In the scientific and medical fields, there call from Mr Yousif al-Khoei, the distinguished head is the contribution that makes to British scientific and of the al-Khoei Foundation, which is a Shia charitable medical excellence, and the extent to which that maintains and religious organisation in north London, about the an international scientific community. In the social detention of a British imam who had arrived earlier sciences, we are talking about soft power and cultural that day at Heathrow Terminal 1 on a flight from diplomacy. Damascus. I spoke to immigration officials at Terminal 1 three times—the third time, to the chief immigration I was sitting here thinking that among my own officer—and was told on each occasion that no British former students I now have only two Commissioners citizen was being detained, although on the third of the European Union, one head of state and a occasion I was asked whether I might have been couple of deputy foreign ministers, but if I were to add talking about somebody with a slightly different name. the other members of my old department at the LSE we could come to a moderately decent number of Finally, the helpful immigration duty officer to politically influential people. It is important to maintain whom I spoke at about 2030 told me that the imam them as friends of the United Kingdom as they pass had been arrested on the landed side of immigration from one generation to another, so it matters how we control, and was under investigation by the Special treat them. Part of what we need to get across is that Branch. She got the senior Special Branch officer on we will deal with them sympathetically and not treat duty at Terminal 1 to ring me at my request, and he them all as potential criminals and, while we all know confirmed that the imam, Mr A, had indeed been the Home Office of old, we hope that in this respect detained for questioning, that he had been fingerprinted the Home Office recognises that one has to keep some and had a saliva DNA sample taken, and that he had doors open as well as having one or two closed. then been released after something like two hours. A minicab sent by his wife to fetch him from the airport Baroness Hanham: I, too, thank the Minister for an was waiting all that time. The numerous questions illuminating and extremely helpful reply, because he asked during the interview, I subsequently discovered has made clear a process that was not at all clear from Mr A, mainly concerned the reasons for his before. As long as I heard the Minister correctly, his frequent visits to places such as Syria and Kuwait, and reply demonstrated a sort of sympathy and pragmatism he answered that he attended religious conferences toward students. First, those who may want to change and meetings in those countries. their course within the institution that sponsors them Later, Mr A sent me a copy of the notice that was will, as I understand it, be able to do so without served on him under the Terrorism Act 2000, a copy of coming back to the UK Border Agency. Secondly, for which I have passed to the Minister, explaining that those who need or want to change institutions, there the requirement to be questioned did not necessarily should be a reasonably rapid turnover from the agency mean that the examining officer suspected him of as long as that institution is licensed to sponsor and being concerned with acts of terrorism, but was in they have the sponsoring letter. That was really what order to enable the officer to discover whether he was the amendment was all about, and we have had a clear such a person. The notice required him to give the explanation from the Minister. Unless I choke when I officer any documents of a kind specified and said read Hansard afterwards, I may not need to return to that the officer had the power to examine his luggage this issue. I shall not say that I definitely will not, but and to detain anything, including a document which for today I beg leave to withdraw the amendment. the search revealed. The notice said nothing at all Amendment 108E withdrawn. about Mr A’s duty to give biometric samples; so, as my first question, is an examining officer supposed to Amendments 109 to 110A not moved. notify the person separately of the intended taking of samples? If he is not, why is that not referred to in the Clause 47 agreed. main notice of examination served on a person at the Clause 48 agreed. airport under the 2000 Act? 783 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 784

[LORD AVEBURY] how many of them are of people either acquitted or Following that incident, I looked up Schedule 7 to not subsequently charged? Or are they continuing to the Terrorism Act 2000, which quite properly gives the collect and retain samples, and how many have been examining officer power to stop a person at a port in taken since the date of the judgment, 4 December? the border area, to question the passenger, to search Will they now say what consultation they have had him and his luggage and to detain any item of his with the Council of Ministers and issue a detailed property, while Schedule 8 provides that an “authorised statement on the steps that they are taking to bring us person” may detain the passenger being examined. back into compliance with Article 8? Have they suggested However, the taking of fingerprints and biometric any other means of achieving this than the destruction samples is regulated by a different statute, the Police of innocent people’s samples? and Criminal Evidence Act 1984. It appears that the Everybody accepts and recognises the importance power to demand these samples does not even require of combating terrorism, but if the Government think that the examining officer suspects that the person has that it is necessary to sacrifice human rights for this committed a criminal offence. In the case of Mr A, he purpose, we have to disagree. It is our human rights was being examined not as a suspect but, as I explained, and the rule of law that we are defending against the to determine whether he was a suspect. Nothing said terrorists. A society in which everyone’s personal data in the course of the interview would have given the are kept on record just in case they may commit a officer reason to suspect that he had committed any crime in the future is not our vision of the future of terrorist offence. Can the Minister confirm that the this country. I beg to move. power to demand samples from a person being interviewed for this reason under the 2000 Act does not rely on any Baroness Hanham: The new clause gives us an evidence that the person has committed such an offence? opportunity to open up the question of the retention It appears, further, that under Section 64 of the of biometric substances, fingerprinting falling within 1984 Act as amended, fingerprints or samples may be that, and I share the concerns of the noble Lord, Lord retained after they have fulfilled the purposes for Avebury, about the fact that we have not yet responded which they were taken. In the case of Mr A, the to the European directive. I think that an order is Special Branch told me that the samples were to be coming up in the very near future, which I hope will retained indefinitely. Although I got no elucidation of indicate that we are about to take some suitable action. the purposes, I imagine that the idea is to build up a This clause relates to the fingerprinting of foreign vast database of samples, which can be compared at criminals liable to automatic deportation. I want to later dates with biometric information obtained from ask the Minister, first, the reason for taking those crime scenes, whether terrorist or of any other kind. fingerprints. I presume that it has something to do As of four months ago, I understand that there were with stopping them coming back in. Secondly, how 5 million samples on the National DNA Database, of long is automatic deportation taking? We all know which something like 850,000 related to persons either that a number of criminals are waiting to go. We are subsequently acquitted or not charged with any offence foxed at every turn, it seems, by the legal system. If at all. their fingerprints have been taken and are still within On December 4 the European Court of Human our purview and control, I am not sure about the Rights, in the case of S and Marper, ruled that the relevance of the fingerprinting to which the clause indefinite retention of biometric samples from innocent refers. Perhaps the Minister would be kind enough to persons was a violation of Article 8 of the ECHR, on tell us what is going on. the right to respect for personal and family life. I wrote to the Secretary of State the following day, referring to Baroness Miller of Chilthorne Domer: I had the the case of Mr A, drawing attention to the judgment great privilege yesterday to visit the National DNA and asking her to make a statement that she intended Database at Hendon and spent a very informative to destroy the samples of persons who were acquitted morning. I learnt that there are instances when it is or not charged with any offence. In a reply dated extremely useful to have on file the DNA records of 14 January, Mr Vernon Coaker, the Minister of State, people convicted of a criminal offence. Some detail said that the Government were considering the was gone into about exactly how they were used. implications of the judgment and would agree with However, in the instance that my noble friend talked the Council of Ministers on how to implement it. For about, where an innocent person’s records were taken the time being, the law on the taking and retention of and stored—it could apply to anybody coming through DNA samples and fingerprints would remain in place. immigration—what provision have the Government I noted from an Answer that the Secretary of State made in the design of the database and the way that it gave to my honourable friend Mr Chris Huhne on operates for the deletion of innocent people’s material. January 14 that among the profiles on the database We know that it is very difficult: you have to go to the were 137,000 relating to children under 16 and that chief constable and get special agreement from him, she had taken steps to have removed those that related which almost never happens. Is the database in any to children who were under 10. way designed so that deletion can take place without it being an incredibly time-consuming and expensive process? In the light of the European ruling, should 6.30 pm not the Government be thinking about that urgently? The Government have now had three months to consider the S and Marper judgment and consult the Lord West of Spithead: While I appreciate the thrust European Council of Ministers. Can they give us an of the inquiry of the noble Lord, Lord Avebury, about update on the number of profiles now held and on the status of Schedule 8 to the Terrorism Act following 785 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 786 the judgment in the case of S and Marper, I should be remains in the UK beyond one month. Furthermore, clear that I believe that the amendment would compromise should information be received from, for example, the UK’s security. abroad, the police’s efforts to identify a suspect who As the noble Lord noted, my honourable friend the may be involved in terrorism, or perhaps locate how Minister for Policing has written to him explaining the he left and entered the country, would be undermined Government’s view on the case of Mr A. I believe that dramatically if fingerprints had to be removed from that reply still stands in this case. If it might be helpful records. to the noble Baroness, Lady Hanham, I would be very Without wishing to prejudge the outcome of the happy for her to see a copy of that letter, which Marper consultation, our view is that restricting the explains the detail behind that case. retention period to the extent that the amendment As noble Lords may be aware, in the light of the proposes would severely hinder the authorities’ efforts judgment of the European Court of Human Rights to counter and investigate terrorism and the movements on 4 December 2008 in the case of S and Marper, we of suspected terrorists, and, potentially, remove a are now considering how to implement it in a way hindrance on terrorist activity provided by the examination which recognises the value of fingerprints and DNA powers in Schedules 7 and 8. However, we will of data in protecting the public. A key part of the course revisit all those issues as part of our consultation. implementation process will be to engage in a public The noble Baroness, Lady Hanham, asked about consultation on how best to bring the judgment into the reasons for taking fingerprints. The proposed power effect. Progress on implementation of the judgment is to take fingerprints allows us to get fingerprints and subject to review by the Council of Europe’s Committee fix the identity of the individual whom we have put in of Ministers, and the Government have submitted a prison for crimes in the UK and whom we wish to report for the committee’s next meeting on 19 March. remove from the UK. Then we have a record when he The judgment recognises that other jurisdictions do tries to come back into the country. That is the reason not apply a “blanket” destruction policy to biometric for the specific measure in the Bill. Those individuals data of those arrested and not convicted, but indicates whom we seek to remove are those who have been that there is a need for a retention policy to reflect the sentenced to up to 12 months in prison and are eligible fact that they were not ultimately convicted. for automatic deportation under the UK Borders Act 2007. As the Home Secretary explained in her speech to The amendment in Clause 48 is a very minor the Intellect trade association on 16 December, the amendment to the UK Border Agency’s existing powers. Government will publish a forensics White Paper later I hope that that provides an answer to why we are this year. Included in it will be the Government’s taking fingerprints. proposed response to the S and Marper judgment. There are clauses in the Policing and Crime Bill which On the specific amendment—and bearing in mind are intended to allow for regulations to be made which that a consultation is ongoing—I hope the noble Lord set out the detailed provisions on the retention of will await the Government’s wider response to S and fingerprint and DNA data. The contents of the Marper, as committed to by the Home Secretary. I ask consultation paper and the outcome of that process the noble Lord to withdraw his amendment. will inform the content of the regulations to be submitted Baroness Hanham: Consultations, consultations, to Parliament. consultations—but it depends who you consult. Will The ability for police Special Branch officers to we at some stage be able to know who is being consulted? take fingerprints and samples at ports of entry has The people who tend to get left out of consultation are become an increasingly important tool in countering those who live in this country—the inhabitants. There the activities of known or suspected terrorists. We is always consultation with lots of organisations, but it would not wish to undermine the thrust of policy in looks as though the ordinary man in the street, who at relation to the strengthening of border controls—through, the moment, if you tested him, would think that the for example, biometric visas—by weakening this whole thing of DNA and fingerprints was totally specifically counterterrorism measure. It would not alien, may not get consulted. Will the Minister assure send the right message to those who pose a threat to us that he will be? the UK or reassure the public at large. Lord West of Spithead: Perhaps I can get back in In 2006, the independent reviewer of terrorism writing on exactly who will be consulted. I do not legislation, the noble Lord, Lord Carlile, wrote to the necessarily share the noble Baroness’s view; the average then Home Secretary following a meeting with operational man in the street often sees DNA as rather important, counterterrorism police officers. The noble Lord endorsed particularly in a case such as the one the other day the use of fingerprints taken at ports, under Schedules 7 when someone was found guilty of rape and killing a and 8 to the Terrorism Act, and considered them to be girl some years ago. The matter is not as clear-cut as of potentially considerable value in the investigation might be said. DNA is an extremely useful tool and I and intelligence-gathering work of the police at ports. do not think that the average man in the street necessarily In the context of international travel, it is not is against it. However, this is a highly complex area, unusual for individuals to enter or leave the United which merits much further debate. I have been told by Kingdom for periods exceeding one month. It is obvious my Box that there will be public consultation. that the value of the police checking and capturing fingerprints at a port and holding them for a month in Lord Avebury: We are not arguing here about whether the context of a long-term visit or period of study is it is right to take fingerprints or DNA samples; that is limited for counterterrorism purposes while the suspect taken for granted nowadays, but people are concerned 787 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 788

[LORD AVEBURY] comparison of the DNA or fingerprint samples, surely about the extent to which these samples are stored on it would be time to destroy them. Could the Minister the national database. I believe that our system has give some assurance at least that he is not intending to more personal profiles on it than any other country in maintain the indefinite retention of the samples? That Europe, but that may be effective in enabling us to would be a step in the right direction. catch criminals. It is not the principle of taking samples in the first instance that we are discussing here but the Lord West of Spithead: The position on timing is indefinite retention of samples from innocent persons. that there will be a paper before the summer with I am most grateful to the noble Baroness, Lady Hanham, draft regulations, which will go before Parliament by and my noble friend Lady Miller for their support for the end of this year, and this stuff will be put on the that principle. website. I see no reason why the response to the With respect, the letter from Vernon Coaker did European court should not be seen as well. I will not explain the detail. He went into the question only probably get into trouble for saying that, but I see no of how a person could be detained under Schedule 7 reason at all why it cannot be made available, so I shall to the Terrorism Act; he did not explain how Section ensure that that is done. 64 of the 1984 Act allows the samples to be taken and The issue is not as straightforward as one might retained indefinitely. That is the point of the amendment. think. The judgment was complex in some ways, and I I am very glad to hear that the Government are do not think really that it would do much good for me considering how to implement the S and Marper to go into some of the detail of it now, although I have judgment. Is there any time limit for that process in the a huge page of speaking notes with all the complexities ECHR? It was on 4 December last that the judgment of it. We are looking at this matter, and there will be was issued, and I am certain that the Council of consultation. We are going back to the court about Ministers would not be happy about an indefinite this. Clearly, we will have to recognise the judgment of extension of the time within which the Government the court, which we do, and implement its findings. It must comply with the judgment. They say that they indicated that our blanket policy of retaining fingerprints are exploring this by means of a public consultation. I and DNA of people who had been arrested but not was not aware of that, to be quite honest, and I would convicted, or of those against whom there was no be grateful if the Minister could place details of the further action, was in breach of Article 8. However, public consultation either on the Home Office website then there are a lot of complexities. Clearly, we will or in the Library of your Lordships’ House so that we absolutely take notice of that and not do that, but the can all engage in the discussion. complexities mean that we have to go into this in some detail. Lord West of Spithead: I shall certainly ensure that we put those details on the website. I hope that we can Lord Avebury: The bottom line was that we cannot put some sensible timescales to it as well. I shall see if retain the samples indefinitely without being in breach that can be done. of Article 8. I am very glad to note the Minister’s assurances that the public consultation documents 6.45 pm will be placed in the Library and that we shall also see the submission to the Council of Ministers this month. Lord Avebury: I am most grateful for that. Could On the basis of those assurances, I beg leave to withdraw the report that was submitted to the Council of the amendment. Ministers—this month, I think the Minister said—also be placed in the Library? We want to know what the Government’s interim thinking is. I take it that the Amendment 111 withdrawn. consultation and the report to the Council of Ministers are not being undertaken in a vacuum and that Ministers Clause 49: Extension of sections 1 to 4 of the UK have certain ideas on what should be done to implement Borders Act 2007 to Scotland the S and Marper judgment. I am just curious to know, if the Minister can tell us this afternoon, what conceivable way there can be of implementing the Debate on whether Clause 49 should stand part of the judgment other than by the destruction of the samples. Bill. Obviously, one realises that in the first instance, when the samples are taken, you do not know whether Lord Hylton: I do not oppose the principle of the individual will be charged with an offence. But Clause 49, although the word “thinks” occurs in the since the purpose of the Schedule 7 interrogation at drafting, which might well be replaced by “reasonably the airport is to ascertain whether a person is a suspect suspects”or “is satisfied”. However, I am greatly concerned or not, one would think that the information then about detention in England and in Scotland. Therefore, obtained would enable the police—and, in particular, I tried to table a modest probing amendment as a new special branch—to determine that, and thereupon either clause before or after Clause 51. The Public Bill Office to destroy the samples or to pass them to the prosecuting told me that that had already been tabled by my noble authorities, which will issue a summons for the offence friend Lord Ramsbotham. I therefore asked to add my in question. If neither of those things happens and, name but, later, the amendment was disallowed and after two years, let us say, the samples have not been did not appear in the first Marshalled List. This was used to incriminate the person on any other offence hard to understand, since other amendments containing that may have been committed in the mean time, by a new clauses were accepted. 789 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 790

My noble friend’s amendment would have stated The men in the two cases quoted were de facto that, stateless, but according to the Home Office there were “detention shall be for the shortest possible time”— only 25 stateless people held at a recent date. Statelessness is therefore not the main cause of detention. I conclude and only— by asking if the Government are studying the report “where there are no alternative ways to ensure compliance”. that I mentioned, and whether they will respond to its recommendations at least by Written Statement. Will Such words would enshrine the language of Chapter 38 they take full account of the criticisms by the Council of the Home Office operational enforcement manual. of Europe’s Commissioner for Human Rights? In Will the Government produce their own amendment April 2008 he urged the Government drastically to along these lines or, better still, set statutory time limit administrative detention of migrants, and to limits for detention prior to deportation or more generally? introduce a maximum time limit. Will the Government Such limits exist in several European Union states, also examine methods used in Sweden and Australia often specifying six months or less. Can the Minister to achieve high rates of voluntary return for unsuccessful tell the Committee what use is being made of bail, asylum applicants? The issue of detention has come tagging and reporting as alternatives to detention? up regularly over the last 20 years, and its improvement Why were the automatic bail hearings, provided in is long overdue. I look forward to the Government’s 1999, abolished by the 2002 Act? The numbers involved response. are not large, yet the cost to taxpayers is high. It has cost £96 million this year and will cost £107 million Lord West of Spithead: I greatly respect the interest next year. I am sure that your Lordships will agree that of the noble Lord, Lord Hylton, and what he has done it is wrong in principle that people should be held in this particular area. I have listened with great interest indefinitely, often without legal advice and usually to what he has said, but the issues that he raises are not without any judicial hearing at all. within the purposes of the Bill. Rather than detain the In January the London Detainee Support Group Committee, I commit to writing to him about the very published a useful report called Detained Lives.It important issues that he raises. shows that up to 3,000 people are detained under immigration powers at any one time. It studied 188 cases Baroness Carnegy of Lour: While we are considering of individuals who were held for one year or longer in Clause 49, I ask the noble Lord why this clause is in prison-like conditions. The report is particularly good the Bill at all. When the UK Borders Act 2007 went on the human consequences of indefinite detention. A through your Lordships’House there was great discussion, significant number of detainees develop mental health in which I took part, about why Scotland was not problems or attempt suicide or self-harm. Riots and included in the provision that enabled a designated destruction of property are other bad consequences. immigration officer to arrest somebody whom they suspected. We were told that it was quite unnecessary I will now quote two particular cases. The first is because the police would always be present at a port in that of Mr Ahmed Abu Bakar Hassan, aged 24. He Scotland. I remember arguing that this was not the comes from the Massaleit ethnic group in Darfur. In case and that the Scottish border would leak like a Sudan he was a political activist, opposing the persecution sieve. Can the Minister tell the Committee why the of his people. He was forced to flee the country and Government have changed their mind on this matter? arrived in Britain in October 2004. His asylum was I think it is excellent that they have done so, but I refused. When he was told to leave his government-funded wonder what their reason is. I am sorry that I did not accommodation, he slept rough in parks for a while. give the noble Lord notice of my query, but as the He eventually claimed asylum again in another name, clause is being considered, I wonder if I might ask. not knowing that it was a crime to do so, and hoping that he would be given somewhere to live. He served Lord West of Spithead: I understand that it was four months in prison and was then detained. He has because we had quite a dialogue with the Scottish legal agreed to return to Sudan, but the Sudanese embassy system about how the police can be used in a port. has refused to admit him. He has been detained for This was related to the holding of someone for three 28 months since finishing his sentence in October 2006. hours before anyone came. It is quite right that that The second case is that of Mr Ali Saifi. He is aged provision has not been required in Scotland in the 27 and lived in Birmingham when he arrived in this past. As a result of that discussion, we had to make country in 2002. He received no benefits or support some changes because immigration is not a devolved from the Government, since he was never advised that issue. It was related to those relationships. That is he may be entitled to asylum support. As an asylum exactly as I understand it. I can go into more detail in seeker, he did not have the right to work. However, he a Written Answer if the noble Baroness would like. worked informally on building sites for a while, but lost his job because he did not have any papers. He Baroness Carnegy of Lour: I thank the Minister but moved to London and ended up on the street. He stole I do not need any more detail; I just wondered what food from a market to eat and was arrested and had happened. Clearly the Government have decided convicted of theft. Early in his sentence he applied for that they were wrong last time and have changed their early deportation, signing to forgo his right of appeal. mind. That is very good news. However, the Home Office—not, perhaps, for the first Lord West of Spithead: I am always very wary of time—had lost his passport and the Algerian embassy U-turns, if I may say so. refused to give him a travel document. He has been detained for 22 months since April 2007. Clause 49 agreed. 791 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 792

Clause 50: Transfer of immigration or nationality review how the Upper Tribunal worked. That was the judicial review applications position only some 18 months ago. The Upper Tribunal commenced its work in November 2008, only two or Amendments 111A and 111B had been withdrawn from three months ago, but the consultation on the inclusion the Marshalled List. of the Asylum and Immigration Tribunal in the two-tier tribunal service was started in August of 2008, before the Upper Tribunal ever came into existence. It was a Amendment 111BA Home Office-led consultation. The working group Moved by Lord Thomas of Gresford included representatives of the judiciary and the Home Office, but no other body was involved in that working 111BA: Clause 50, page 41, line 1, at end insert— group. ( ) Nothing in section 31A of the Supreme Court Act 1981 (c. 54) (England and Wales transfer from the High Court to the The consultation set out two primary aims, which Upper Tribunal), section 25A of the Judicature (Northern Ireland) are interesting. The first was to reduce the immigration Act 1978 (c. 23) (Northern Ireland: transfer from the High Court workload of the High Court and the Court of Appeal to the Upper Tribunal) or section 20 of the Tribunal, Courts and judiciary. The second was to assist the Home Office in Enforcement Act 2007 (c. 15) (transfer from the Court of Session its immigration work, particularly in relation to the to the Upper Tribunal) shall permit the transfer of any application speed with which asylum claims are dealt. Relieving where the application calls into question a decision under— the load on the one hand was of interest to the (a) the British Nationality Act 1981 (c. 61); judiciary and getting immigration business through (b) any instrument having effect within paragraph (a); or was of interest to the Home Office. All the previous (c) any other provision of law for the time being in force assurances that this House received that it would not which determines British citizenship, British overseas happen until the Upper Tribunal was up and running territories citizenship, the status of a British National and we were able to assess how it worked fell by the (Overseas) or British Overseas Citizenship.” board. Lord Thomas of Gresford: Clause 50 is concerned As was recognised when we were discussing the with judicial review in Part 4 of the Bill. The Tribunals, Tribunals, Courts and Enforcement Bill, immigration Courts and Enforcement Act 2007 set up a new system judicial reviews may be especially contentious because of tribunals, but the transfer of immigration and of the failure by the Home Office as a litigant—as a nationality judicial reviews was excluded. What was party—to show proper respect for the procedure in the the purpose of, and reason for, that? The noble Baroness, court and for the rule of law. Your Lordships will be Lady Ashton of Upholland, told us in Grand Committee aware that the Home Office has been taken to task by that judicial reviews in immigration cases were particularly the courts on many occasions. sensitive, as indeed they are. They engage absolute The risk now in allowing the transfer of these rights against torture and inhuman and degrading judicial reviews without any opportunity to assess the treatment, and involve complex issues under the Human capacity and the competency of the Upper Tribunal to Rights Act. The noble Baroness also said that there deal with them is threefold. First, there is an immediate was no question of removing the statutory bar on the risk of injustice to the individual litigant in relation to transfer of judicial reviews at that time because it his fundamental rights, including rights to liberty, life would be necessary to review how the transfer to the and so forth. That was not one of the aims of the Upper Tribunal of all the other tribunals had worked Home Office-led consultation I outlined. Secondly, in other less sensitive cases. there is a risk that inadequate handling of these judicial reviews by an untested tribunal will result in an increase 7pm in the workload of the supervising court—the Court of Appeal. If judicial reviews go to the Upper Tribunal, In Grand Committee, the noble and learned Baroness, which has only just started, that will result in a greater Lady Butler-Sloss, supported the noble and learned workload for the Court of Appeal. Thirdly, there is the Lord, Lord Lloyd of Berwick, in relation to the risk of reduced supervision of the Home Office resulting requirement to have someone of the level of a High in it taking greater liberties, leading to more instances Court judge to hear a judicial review in the tribunal. of injustice and increased litigation. She said it would be invidious for there not to be a judge of that rank dealing with it. Your Lordships will The introduction of Clause 50 to this Bill is completely recall at Second Reading that the noble Baroness, premature and contrary to the assurances given to this Lady Ashton, was inclined to support this clause, not House when we were discussing the Tribunals, Courts for any reason other than the pressure on the judiciary and Enforcement Bill only a very short time ago. That in the administrative court by the number of judicial is why this clause should not stand part of the Bill. I reviews that are brought in immigration cases. However, now move to the particular amendments which raise after arguments in all directions, eventually a compromise other important issues in any event. We will press was struck in which the Government accepted that, if these amendments if your Lordships agree this clause. they sought to remove the exclusion of these types of Amendment 111BA deals with nationality decisions. cases, it would be only by way of primary legislation, Immigration issues are concerned with administrative which is no doubt why this clause appears in the decisions. The granting of certain rights to people who current Bill. come to this country is an administrative decision The noble Baroness, Lady Ashton, also accepted taken by government officials. Nationality issues, on that the removal of the exclusion should not be the other hand, are concerned with status. They are contemplated prior to there being an opportunity to concerned with the declaration of whether an individual 793 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 794 is or is not a British citizen. Immigration issues and Lord Kingsland: I also gave notice of my intention nationality issues are two completely different things. to oppose the Question that Clause 50 stand part of Under the present proposals in Clause 50, both the Bill. I am puzzled by the fact that the clause is immigration and nationality claims are to be transferred. being promoted by the Home Office. The Tribunals, The judicial reviews of administrative systems are Courts and Enforcement Act 2007, to which it relates, presently heard in the administrative court of the was promoted by a department that is now part of the Queen’s Bench Division of the High Court by High Department of Justice. The Home Office is a party to Court judges. The judicial review in that context is all immigration and asylum proceedings and therefore, frequent and there is a great deal of expertise in the for reasons that do not need elucidating, should not administrative court in that regard. But nationality be, or even be perceived to be, an advocate for one judicial reviews are very few. In 2007, only three cases form of procedure over another. concerning nationality law were heard in the High The Tribunals, Courts and Enforcement Act allows Court and in the Court of Appeal that led to final for the transfer of certain judicial review applications judgment after a substantive hearing. In 2008 there from the High Court to the Upper Tribunal. However, were just two. as we have heard from the noble Lord, Lord Thomas Unlike immigration claims, some nationality law of Gresford, primary legislation is necessary before claims can also be brought in private law proceedings immigration and asylum matters can be so transferred. as well as by public law claims for judicial review. Noble Lords may recall that this was a concession Nationality law claims concern challenges to the refusal made to your Lordships by the noble Baroness, Lady to register or naturalise a person as a British national Ashton, in the course of the proceedings on the Bill. of a particular description. Those are public law claims. The reason is clear; it is principally because disputes in Nationality law claims can also be an issue for declarations that area raise issues such as the right to liberty, and about whether a person has automatically acquired a the right not to be put in danger of torture, cruel and form of British nationality at birth, for example. It is a unusual punishment or capital punishment, which are completely different sort of animal from the immigration distinct from those rights that are dealt with under the judicial reviews that are part of the subject of Clause 50. new integrated tribunal regime. We would like to probe why the two types of issues are When the 2007 Act became law, the Government lumped together in Clause 50. I look forward to were not confident that the transfer of applications for hearing the noble Lord on that topic. judicial review in this area to the Upper Tribunal was The other issue raised is that of Scottish claims. appropriate. The noble Baroness, Lady Ashton, stated The Scottish Court of Session would be allowed to in your Lordships’ House that she wanted to see how retain the jurisdiction to hear asylum and immigration the new regime worked before making changes. The appeals under the terms of the Tribunals, Courts and new Upper Tribunal, as we have also heard from the Enforcement Act 2007, at least until full and proper noble Lord, Lord Thomas of Gresford, began its consideration is given to removing that jurisdiction. work as recently as November 2008, leaving hardly The clause transfers asylum and immigration appeals enough time to come to a mature conclusion about its from the Court of Session to the Upper Tribunal. The appropriateness as a vehicle for judicial review cases in clause proceeds on the basis of the publication immigration and asylum matters. Moreover, as the Consultation: Immigration Appeals. Fair Decisions, Faster noble Lord, Lord Thomas of Gresford, has also pointed Justice. However, there has been no separate consideration out, in August 2008 the Home Office launched a of the Scottish issues in the consultation, when the consultation on the merits of moving immigration issues are very different. The proposal in Clause 50 and asylum matters to the new integrated institutions. relating to Scotland pre-empts the civil justice review The response to this consultation may be complete, currently being conducted by Lord Gill, although the but it has not yet been published. I find astonishing Minister, Vera Baird MP, told the Public Bill Committee the timing of the consultation. What was the point of when the 2007 Act was being debated, that, initiating it at a time when no one could possibly have had any experience of how the Upper Tribunal would “we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish fare? There was no evidence to submit to it, and upon Executive in March 2006 would be best placed to consider the which to opine. I regard Clause 50 as a straightforward detail of possible application for second appeals in Scotland”.— breach of faith with your Lordships’ House. [Official Report, Commons, Tribunals, Courts and Enforcement Bill Committee, 20/6/07; col. 36.] It also pre-empts the Scottish Administrative Justice 7.15 pm Steering Group’s final report. The group’s first report I suspect that pressure for premature change is left open the question of whether proposals made in being generated mainly by members of the administrative the consultation paper are a preferable option. court. It is no exaggeration to say that High Court There is no obvious demand in Scotland for transfer judges, there, are inundated by applications to judicially from the Court of Session to the Upper Tribunal. In review immigration and asylum decisions. Statistics June 2008, in its submission to the civil justice review, suggest that 70 per cent of that court’s resources are the border agency suggested this proposal as one of a absorbed by such matters. However, the only consequence range of possibilities. However, it did not receive a of passing these matters to the Upper Tribunal would great deal of favour. Thus, for separate reasons, the be to create a similar problem there. Law Society of Scotland, which put forward this The colossal growth in such applications is the amendment, says that the clause is premature. I beg to symptom of a deeper malaise: the failure of the existing move. Asylum and Immigration Tribunal to make fair and 795 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 796

[LORD KINGSLAND] A third possible reason for excluding immigration timely decisions. This in turn is a function of two cases in 2007 is that immigration law and practice features. The first is the structure of the immigration seem to be in a constant state of flux. We are at this and asylum tribunal system, following the move by the moment anxiously awaiting the so-called simplification then Home Secretary, the right honourable gentleman Bill that the Minister has promised for this Session. It David Blunkett, to change from a two-tier to a single-tier may have been thought that it would be more sensible system. As was widely predicted, this has proved a to keep immigration cases where they are, at least until disaster. the law has settled down a bit. Indeed, I think that I The second feature is that the procedure of the am right in saying that there is an important immigration tribunals is determined not, as one might expect, by a case currently being heard in the House of Lords at tribunal service responsible to the Department of Justice, this moment, but I may be wrong about that. but by the Home Office. As I have stated, the Home Each of those three reasons is a good reason—there Office is invariably a party to a dispute. So unsatisfactory may be others—why immigration cases were left out are these procedures that it is often impossible for an of Section 19 when the 2007 Act was given Royal appellant to know what the case against him is. The Assent. I suggest that they are still good reasons why procedures also often lead to lengthy delays, so that we should not act too quickly now. many applications for judicial review are made, for example, in the field of deportation orders, on the That brings me to the second question that I hope grounds that circumstances have changed since the the Minister will answer: why are we changing direction initial decision to deport was handed down. now, so soon after the 2007 Act was passed? Why are The Home Office has indicated that the Government we having second thoughts when we have as yet, as has intend to publish a draft immigration simplification been pointed out, so little experience of how the Bill in the autumn. If that is so, it would provide us Upper Tribunal is working? It has only been in operation with an opportunity to address the issues that underlie for three or four months. the explosion of judicial review applications. Until The answer can only be the enormous pressure those questions are addressed and answered, there is under which the administrative court is currently operating. little point in proceeding to the measure outlined by There can be no other explanation. It is important to Clause 50. draw a distinction between the ordinary work of the AIT and applications for judicial review. I see no reason why the ordinary work of the AIT should not Lord Lloyd of Berwick: I, too, was surprised to find be transferred to the First-tier and Upper Tribunals as Clause 50 tucked away in the Bill so soon after the soon as the judges have sufficient experience. That Tribunals, Courts and Enforcement Bill received Royal would be the logic behind the 2007 Act, and I hope Assent in 2007. A key feature of the Act was that that we will follow it through. I also hope that such asylum and immigration cases were excluded from the cases will, when transferred, be dealt with in a separate operation of Section 19, so that High Court judges chamber, of which the president should be a High sitting in the administrative court are not obliged to Court judge. transfer such cases to the Upper Tribunal, and indeed are prohibited from doing so. The purpose of Clause 50, However, applications for judicial review in such as has been pointed out by both noble Lords who have cases stand on an entirely different footing. These are spoken, is to remove that prohibition. So there are two the sensitive cases that raise the difficult questions of related questions for the Minister. First, why were fact and law, and should be dealt with by judges of the asylum cases excluded from the operation of Section status as a High Court judge. It is for that reason that 19 as recently as 2007? Secondly, why is he seeking it is so important that the applications for judicial now to reverse that exclusion? review in asylum cases should continue to start in the The answer to the first question is relatively easy and administrative court as they always have. However, the has already been given by both noble Lords who have problem, as has been pointed out, is that there are just spoken. Asylum cases have always given rise to sensitive too many of them. Applications for judicial review are issues, and they often give rise to difficult questions of currently running at a rate of about 4,000 a year. What fact and law, some of which end up in the House of is needed is some way of sifting out those cases that Lords, as I know from my personal experience. As the must be dealt with by High Court judges in the late Lord Bridge said of one such case, R v the Secretary administrative court as they always have been, and as, of State for the Home Department Ex parte Bugdaycay, I think, everybody agreed that they should be, from decisions in asylum cases may, and sometimes do, put those cases that could be transferred by the administrative the applicant’s very life at risk. They therefore call, as court to the Upper Tribunal. If the Minister could Lord Bridge pointed out, for the most anxious scrutiny. find a way of doing that, then he should by all means That must be right, and is one good reason why such let us have a look at it. However, as I said on Second cases should be dealt with by judges of the standing of Reading, it is to my mind essential that we should High Court judges in the administrative court. know from him what exactly is proposed before we are However, there is a second reason. The current asked to agree to Clause 50. workload of the AIT is very heavy. It may have been Lastly, I have spoken of the high status of High thought that the judges of the new Upper Tribunal Court judges. The High Court judge is the key figure should gain experience in other, less sensitive and less in the whole judicial hierarchy. The quality of the pressurised, areas before being swamped with asylum present High Court judges is very high indeed, and it and immigration cases. It is not only the difficulty of is vital that that quality should be maintained. There such cases, but their number, which is of concern. is at least a risk that we will not get enough High 797 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 798

Court judges of the right calibre to serve in the paragraph 39 of its consultation paper, the UK Border administrative court if the burden we place on them is Agency acknowledged that the process for judicial too heavy, or if too much of the work that they are review in Scotland was, required to do could be done as well by others. That “currently subject to any changes that may or may not be introduced may be a question for the Lord Chancellor rather than following the review … currently being undertaken under the the Home Secretary, but I thought it worth making chairmanship of Lord Gill”. that point in this context. Lord Gill has not yet reported. It might be thought premature at this stage to remove the statutory bars so Lord Cameron of Lochbroom: I speak only to far as they affect the Court of Session, pending publication Amendment 111DA, which affects the Court of Session. of that report. This factor is fortified by a further Section 20 of the Tribunals, Courts and Enforcement consideration, which has already been mentioned—as Act 2007 provided for the transfer of judicial review I understand it, further primary legislation would be applications from that court to the Upper Tribunal required to enable the Asylum and Immigration Tribunal subject to four conditions. to be replaced by the two-tier system which has been Under the Act, transfer was statutorily barred in established by the 2007 Act. Perhaps the Minister two cases. The first is if the subject matter of an would confirm that this is the case. application to the supervisory jurisdiction of the Court As a footnote to that observation, I draw attention of Session was a devolved Scottish matter. As the to the provision in Section 21(3) of the 2007 Act. This Minister has already pointed out, immigration is not a section gives the Upper Tribunal the function of deciding devolved matter. The second statutory bar related to applications transferred to it by the Court of Session judicial review applications relating to immigration or under Section 20. Subsection (3) states: nationality decisions. This was constituted by Section 20(5) “In deciding an application by virtue of subsection (1), the of the 2007 Act as condition 4. Clause 50(3) would Upper Tribunal must apply principles that the Court of Session remove that bar. would apply in deciding an application to the supervisory jurisdiction It is important to have in mind how Section 20 of that Court”. operates. It contemplated two situations: first, where Can the Minister provide any assurance to the Committee there was mandatory transfer, the court must transfer as to how that provision is to be secured? At first blush an application to its supervisory jurisdiction if certain it would suggest that the judge presiding at the hearing conditions are fulfilled; and secondly, where transfer of the application should be a judge of the Court of could be made at the discretion of the judge of the Session. I refer in passing to the provisions of the 2007 Court of Session hearing the application. In either Act, including Section 18(8), which contemplate a case, transfer could only take place if the application judge of the Court of Session being a member of the did not seek anything other than an exercise of the Upper Tribunal. supervisory jurisdiction of the Court of Session. That A question may arise whether there is likely to be was condition 1. any saving of time or expense in the transfer of Condition 2 made provision for the Court of Session applications to the Upper Tribunal from the Court of to specify classes of case apt for transfer by passing an Session. That is not a question, I suggest, which can be Act of Sederunt made with the consent of the Lord answered until Lord Gill has reported. Indeed, in the Chancellor, an Act of Sederunt being the instrument consultation paper the agency stated: by which the Court of Session exercises its statutory “The Upper Tribunal would need to be well-established before power to regulate its jurisdiction and procedures. Thus, any such a provision on transferring judicial review applications unless and until the Court of Session exercised its would be commenced and any transfers could be made. First, it power to determine which, if any, specific class of would be important to ensure the Upper Tier had the capacity to applications to its supervisory jurisdiction is to be deal with the additional workload quickly and efficiently. It would also be necessary to consider the best use of judicial time, transferred to the Upper Tribunal, and the Lord the desirability of allocating cases to the appropriate level of Chancellor consents, there can be no mandatory transfer judiciary, and the impact on judicial resources within the higher to the Upper Tribunal of any class of applications. courts and the Upper Tribunal”. While I remain open to the view that perhaps at this 7.30 pm stage the Court of Session could make sure that there In the absence of any act of sederunt, there remains was no mandatory transfer of applications, and using a discretion in a particular case for the judge hearing its discretion judges would have to be persuaded that the application to determine that the application be any application should be transferred, I suggest the transferred to the Upper Tribunal, even though the better course at the moment is to defer consideration Court of Session has not specified the class of case of the type of matters under review in Clause 50. into which the application falls as being one for mandatory transfer. That discretion would extend to immigration and nationality appeals, with the removal of the statutory Lord Pannick: I find this matter much more difficult bar created by condition 4. At Second Reading, the than noble Lords who have spoken so far on this Minister referred to the judiciary’s responses to the amendment. The reason is that a very large proportion consultation paper Fair Decision, Faster Justice, which of the immigration cases that are heard currently in has already been mentioned. Can the Minister confirm the High Court raise issues of no great difficulty, that in their response to the paper, the judges of the based on the particular facts and circumstances of the Court of Session indicated that they were not able to individual applicant. For that reason, many of these express firm views on the proposal to amend Section 20 cases at present are heard in the High Court not by until Lord Gill, the Lord Justice Clerk, had reported High Court judges but by deputy High Court judges— on his review of the civil courts in Scotland? In circuit judges sitting as High Court judges, a reflection 799 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 800

[LORD PANNICK] brought before the High Court. The fact that it is of the lack of complexity of these cases. Yet these possible to bring a private law case before the High cases do constitute a very substantial proportion of Court does not justify restricting the ability of our the workload of the High Court, taking up a very most senior judiciary to decide how public law cases large proportion of the resources of the court. I can should be heard. see good reason why many of these cases should be Nationality decisions do not currently attract a heard by the Upper Tribunal, especially as there will right of appeal, except a decision to deprive a person be a right of appeal to the Court of Appeal—if of British citizenship, which has rarely been used to permission is granted—on any point of law. date. This means that senior immigration judges, who However, I have two concerns about Clause 50. would become judges of the Upper Tribunal under the First, is it really the Government’s intention to transfer unified system, do not currently have the same level of all immigration judicial reviews to the Upper Tribunal? expertise in handling nationality cases as they do in Do the Government recognise and accept that although immigration and asylum cases. many of these cases could be heard in the Upper It is worth being clear, however, that the Tribunals, Tribunal, there are undoubtedly some judicial reviews Courts and Enforcement Act 2007 specifies that judicial in this context which by reason of the complexity of review applications in the Upper Tribunal can be the case, or by reason of the significance of the issues heard by judges of the High Court, Court of Appeal either generally or for the individual applicant, should or Court of Session, and indeed these are the only indeed be heard by a High Court judge? If that is judges with an automatic right to hear the applications right, surely it is open to the Minister to think again by virtue of that Act. Other judges, including senior about this matter and to come back to the Committee immigration judges, can hear applications only where with a power that is more appropriately circumscribed. the relevant Lord Chief Justice or Lord President has My second concern has already been expressed by agreed for them to do this with the Senior President of the noble Lord, Lord Thomas of Gresford. I simply Tribunals, who is already required to consider the do not understand why nationality cases should be need for judges to be experts in the subject matter or sent to the tribunal. These cases always, in my experience, law relating the types of cases that they hear. involve complex issues of law and there are very few of We believe that the decision as to whether particular them. judges outside those specified in the TCE Act are suitable to hear applications should rest with the relevant Lord West of Spithead: I make it clear at the outset Lord Chief Justices and Lord President. As an example, that in speaking to this group I do not regard the decisions to deprive people of British citizenship carry decision that Clause 50 stand part of this Bill to be a right of appeal. If tribunal judges hear a significant consequential on any decision on Amendments 111BA number of these appeals, the chief justices and the and 111DA. We have had a very useful discussion and Senior President of Tribunals may take the view that very useful input. The noble Lord, Lord Kingsland, they have acquired sufficient expertise to hear judicial asked why this clause is being promoted by the Home review cases relating to other nationality decisions. Office. This is a Government Bill on which the Home This amendment would limit their ability to make that Office is leading. We have worked very closely with the decision and therefore to manage cases in the best Ministry of Justice on Clause 50. It fully supports and interests of justice. is pushing this, as are quite a large number of judges. Amendment 111DA retains the full powers of the As always when it comes to issues like this I feel rather clause for England, Wales and Northern Ireland, but like Daniel in the lion’s den, surrounded by some excludes Scotland. I am aware of the concern that we many experts in this field. should not pre-empt the ongoing reviews in Scotland and, of course, I recognise that the Scottish legal Lord Kingsland: I think it is more like being a lion in system is different from that in the rest of the United a den of Daniels. Kingdom. It is worth pointing out, however, that the power to transfer most judicial review cases into the Lord West of Spithead: I am not sure I agree with Upper Tribunal is already in place in Scotland, and that. the Lord President has already made an Act of Sederunt Amendment 111BA retains the general effect of the designating a class of cases which must be transferred. clause, allowing immigration judicial reviews to be All that Clause 50 does is extend existing powers to dealt with in the Upper Tribunal. However, this immigration and nationality cases. amendment would remove the power of the relevant We should be clear that the powers contained in senior judiciary to direct that cases relating to nationality Clause 50 are permissive powers only; that is important. decisions must be transferred. It has been suggested The Lord President is not required to designate a class that as some nationality claims may be brought before of cases which must be transferred, and the judges of the High Court in private law proceedings, judicial the Court of Session do not have to transfer specific review cases should also remain before the High Court. cases if they do not believe that it is right to do so. Clause 50 allows the judiciary to ensure that public If we give judges in the rest of the United Kingdom law judicial review cases are handled in the most the power to transfer cases, it seems right that we efficient way, including transferring them into the should ensure that judges in Scotland have the same Upper Tribunal if that is appropriate; not necessarily powers and let the Scottish judiciary decide whether to to do it, but if it is appropriate. It is true that Clause 50 use them. The chief justices exercise their powers with does not address the issue of private law cases being the responsibility that is expected of them and fully 801 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 802 consider all arguments as to whether a class of case is published a consultation setting out proposals for suitable for transfer before they issue any directions. reforming the way in which immigration appeals are We should not restrict the ability of our most senior heard. judiciary to manage judicial review cases as they see One of the aims of those proposals was to reduce fit, and I therefore urge the Committee to resist both the existing burden of immigration matters in the these amendments. higher courts. As a result, we are deciding whether to I will now deal with the Question that Clause 50 transfer the AIT into the unified tribunals system. We stand part of the Bill. Clause 50 allows immigration are still working with colleagues in the Ministry of judicial review cases to be transferred into the Upper Justice to ensure that if we bring the AIT into the Tribunal on a case-by-case basis. The clause also allows unified tribunals structure, it will result in a system the Lord Chief Justice, the Lord President and the which is faster, final and respected, delivering the Lord Chief Justice of Northern Ireland, with the benefits that were set out in the consultation paper last agreement of the Lord Chancellor, to specify a class of year. This clause forms part of that package of reforms. case which must be transferred into the Upper Tribunal. I am pleased to report that the senior judiciary supported These powers are already available for non-immigration this provision in their response to the consultation. cases. We will not commence this provision unless and This clause does not remove access to the remedy of until the AIT has been transferred into the unified judicial review. The Upper Tribunal has exactly the tribunals system, which may be done under existing same jurisdiction in judicial review matters as the powers. Although existing powers also enable certain higher courts and may grant the same kinds of relief. members of the AIT to sit in the Upper Tribunal, we It is important to make the context of this clause clear. do not think that it makes sense for immigration We are hopeful that we will be able to transfer the judicial reviews to be considered in the Upper Tribunal Asylum and Immigration Tribunal—I will refer to this unless and until the AIT is fully integrated within that using its usual abbreviation, AIT—into the unified system. This provision is needed to give the higher tribunals system. The unified tribunals system has courts greater flexibility in dealing with immigration been operating for other jurisdictions since November matters, and it is a significant part of the wider reform last year. of immigration appeals currently under consideration. The AIT is a single-tier appeals system, and there is If it is considered right to transfer the AIT, we wish to a statutory right to apply to the High Court for an be in a position to implement this clause to complete order for the AIT to reconsider its decision. There are that package. clear benefits to transferring into the unified system— Concerns were expressed on Second Reading that which is a two-tier system—in terms of removing the the Government intended to retain existing arrangements burden of those immigration reconsideration applications for the making of procedure rules in respect of from the higher courts. That burden has been referred immigration cases. I have written to noble Lords to to by a number of noble Lords. The noble and learned advise that this is not the case, and that if we do Lord, Lord Lloyd, pointed out the huge pressure that transfer the AIT into the unified system, the procedure there is at the moment. There is no need for a rules will be made by the Tribunal Procedure Committee reconsideration process in the unified tribunals system, in the same way as for other cases in the Upper as there is a right of appeal against a First-tier Tribunal Tribunal. decision to the Upper Tribunal. Before we can make the decision to transfer the A number of specific questions were asked. The AIT, however, we must be sure that the new system noble Lord, Lord Kingsland, asked about procedure will be faster, final and respected. Officials in the UK rules made by the Home Office. This is incorrect. The border force and the Tribunals Service are finalising procedure rules for the Asylum and Immigration work on this at the moment, and we hope to make an Tribunal—AIT—have been made by the Lord Chancellor announcement very shortly. Other, non-immigration since at least 2002. We have indicated that if the AIT judicial review cases can already be transferred into transfers, the rules will be made by the Tribunal Procedure the Upper Tribunal and, if we transfer the AIT, it Committee. The noble and learned Lord, Lord Cameron, makes sense to remove the existing bar to transferring was absolutely correct in what he said about the response immigration judicial reviews. made by the judges of the Court of Session. However, the important point is that this is a permissive power; the judges in the Court of Session do not have to use it if they feel that it is too soon. That point was made 7.45 pm also by the noble Lord, Lord Pannick. The noble and Noble Lords have referred to the fact that the learned Lord, Lord Cameron, also asked about the matter of transferring immigration judicial reviews primary legislation required to transfer the AIT. That into the Upper Tribunal was debated during the passage is not necessary. A statutory instrument to transfer the of the Tribunals, Courts and Enforcement Act, and functions is what is required, and that will be subject agreed that the timing of such a measure was not to affirmative resolution. right. I, too, was surprised at how rapidly after the The noble Lord, Lord Pannick, asked whether there decision was made this was being looked at. There was was an intention to transfer all judicial reviews to the quite a lot of pressure, not least from the judiciary. Upper Tribunal. The answer is no. It is a matter for Two years on, the large volume of immigration judicial the judiciary which case should be transferred. That is reviews is creating a huge, significant and increasing the point: they will be able to judge it themselves and burden on the higher courts. Last year, the Government they are the people who really understand those issues. 803 Borders, Citizenship and Immigration[LORDS] NI Criminal Injuries Compensation 804

[LORD WEST OF SPITHEAD] in supervising inferior tribunals. The judge who considers It is not for the Government to dictate because they applications for judicial review should have the power are very sensitive issues and the judges are the right to direct that the individual case could go to the people to make those decisions. Upper Tribunal. As the noble Lord, Lord Pannick, The noble Lord, Lord Pannick, also raised questions has pointed out, many of these cases are concerned about nationality decisions. We recognise that nationality with factual rather than with complex, legal issues. An cases often raise very complex issues, but if we exclude expertise would no doubt develop eventually so that a them they will be almost the only judicial reviews that proper sifting process should occur. However, that is cannot be transferred. Again, we think that it is better not in the Bill now and I believe that we can put our to leave it to the judiciary to do that on a case-by-case heads together and come forward with something that basis. is far more satisfactory and in accord with what we were discussing when the 2007 Act went through this I know that this has been a rather long-winded House. For the moment, in the hope that the Minister response but I hope that it has covered most of the will respond to further consultation, I beg leave to points and removes the remaining reservations on the withdraw the amendment. matter. As I have said, I do not regard the decisions on Clause 50 to be consequential on decisions on the amendments, but I would be grateful to noble Lords if Amendment 111BA withdrawn. they would withdraw their amendments. Amendments 111C and 111D had been withdrawn from the Marshalled List. Lord Thomas of Gresford: The noble Lord, Lord Kingsland, put his finger on the problem which was Amendment 111DA not moved. created by Mr Blunkett’s abolition of appeals in immigration cases and the creation of a single tier. I Amendments 111E and 111F had been withdrawn from am sure that when he did so—although I have not had the Marshalled List. the opportunity of checking Hansard—he said that it would be a faster and more efficient way of dealing Clause 50 agreed. with immigration cases, which is almost exactly the language that the Minister has used in his response. House resumed. Committee to begin again not before He is looking for efficiency and speed. What we are 8.55 pm looking for is justice. When you are concerned with people’s lives, as all these issues are, efficiency and speed is all very well from the Home Office’s point of Northern Ireland Criminal Injuries view but it may not be the proper approach at all from Compensation Scheme 2009 the individual’s point of view. Motion to Approve Just as an illustration of how the problem has been created, I have been instructed while the Minister was 7.56 pm responding that Government inaction over Zimbabwe in the last two years has led in the High Court to Moved by Baroness Royall of Blaisdon 150 applications for judicial review for fresh claims but That the draft scheme laid before the House on 500 applications for reconsideration. It is the abolition 28 January be approved. of the second tier that used to exist that has created all the pressure on the administrative court. As the Minister Relevant Document: 5th Report from the Joint has admitted, it has also caused the matter to be Committee on Statutory Instruments. brought back to us prior to all the procedures that we were assured would happen and before we have the Baroness Royall of Blaisdon: My Lords, I beg to opportunity to consider how the tribunal system is move that the draft Northern Ireland Criminal Injuries going to work. Compensation Scheme 2009, which was laid before I detected in the contributions of the noble and this House on 29 January 2009 be considered. I also learned Lord, Lord Lloyd, and the noble Lord, Lord beg to move that the Draft of Alterations to the Pannick, suggestions that we should be looking to Northern Ireland Criminal Injuries Compensation some proper way of sifting these applications and Scheme 2002, a copy of which was laid before this determining which should go to the Upper Tribunal House on 17 December 2008, should also be considered. and which should be retained in the High Court. The I welcome this opportunity to put these proposals Minister refers to a case-by-case approach but this before the House today. particular clause does not refer to such an approach. I will deal first with the Draft of Alterations to the The clause would permit all cases of this of type Northern Ireland Criminal Injuries Compensation judicial review to be transferred to the Upper Tribunal Scheme 2002. The Northern Ireland Criminal Injuries without there being any sifting process as to which are Compensation Scheme 2002 was established by the more important and complex and which should be Criminal Injuries Compensation (Northern Ireland) heard in the High Court. Order 2002. The Scheme, which came into force on Perhaps a way forward is that between now and 1 May 2002, is important in providing compensation, Report stage for us consider whether applications for at taxpayers’ expense, to the blameless victims of crimes judicial review should remain in the High Court, of violence. The scheme reflects the Government’s which is the traditional role of that court over centuries commitment to supporting people who are the innocent 805 NI Criminal Injuries Compensation[4 MARCH 2009] NI Criminal Injuries Compensation 806 victims of violent crime and to ensuring that they known as the tariff scheme, provides compensation to receive some form of financial recognition of their victims of violence in Northern Ireland who have been injuries from the community by way of criminal injuries physically and/or mentally injured, or who are a dependant compensation. or relative of a deceased victim. The governing legislation Compensation payments are based on a tariff of is the Criminal Injuries Compensation (Northern Ireland) awards for criminal injuries of comparable severity. A Order 2002. tariff scheme sets out the amount that may be awarded Arrangements in Northern Ireland for criminal injuries for certain specified criminal injuries, covered by injury compensation have, since the 1960s, been broadly similar descriptors in the tariff scheme. Some 280 such injuries to those in the rest of the United Kingdom. In 1996, a are listed in the tariff of awards, attracting compensation tariff scheme based on fixed payments for specific ranging from level 1 at £1,000 to level 29 at £280,000. injuries was introduced in Great Britain, and in 2002, In the more serious cases compensation can also be after a review led by Sir Kenneth Bloomfield in Northern awarded for loss of earnings, loss of earning capacity Ireland, a tariff-based scheme was also introduced in and the costs of special care. respect of all levels of injury. The current arrangements In administering the scheme, the Compensation for criminal injuries in Northern Ireland are therefore Agency in Northern Ireland received 4,922 claims for already similar to those in Great Britain, with the period 2007-08 and paid a total of £13.8 million in compensation for criminal injuries set through a tariff criminal injuries compensation. The staff of the agency scheme. However, as a legacy of the past 30 years, the have provided the people of Northern Ireland with a individual value of tariff points in the Northern Ireland sterling service, often in very difficult circumstances. It 2002 scheme is different from, and generally higher is only fitting that I register the appreciation of this than, that of the scheme in Great Britain. Aside from House for the work that they do on behalf of victims these differences in tariff rates, the two schemes are of violent crime. similar in structure and concept. Since the 2002 scheme came into operation, and in A characteristic of criminal injuries compensation accordance with its provisions, the Compensation Agency in Northern Ireland has always been the comparatively has, from time-to-time, had to make payments to high take-up rates and higher levels of compensation. victims for injuries not included on the original list of Expenditure on tariff payments in Northern Ireland injury descriptions. Since 2002, some 500 separate in 2006-07 was running at a rate almost three times claims of this type have been processed and payments that of Great Britain per capita. There remains a of around £4.3 million made. Noble Lords will be greater propensity to apply for compensation in Northern relieved to know that those who have suffered these Ireland, even though rates of violent crime per head of injuries have had their claims met in full. However, population in Northern Ireland are now lower than under the terms of the tariff scheme, the claims cannot those of England and Wales. be officially closed until the new injury descriptors I move on to the reason for change. In November developed to address these injuries are formally added 2007, the Government announced a review of criminal to the 2002 scheme. injuries arrangements as part of their agenda for The 2002 order makes provision for the Secretary normalising life in Northern Ireland. On 6 March of State to add new injury descriptors, with corresponding 2008, we announced the publication of a consultation levels of new awards. Such alterations to the scheme document proposing a new scheme under the Criminal have to be approved by the affirmative resolution Injuries Compensation (Northern Ireland) Order 2002. procedure. It is to seek that approval that I have The scheme does not require primary legislation but, brought this measure before the House this evening. given that this issue will be the responsibility of the The new descriptors reflect consultation and agreement Northern Ireland Assembly when policing and justice between the Compensation Agency and the Criminal powers are devolved, we wanted to ensure that a Injuries Compensation Appeals Panel for Northern 60-day consultation exercise was conducted to take Ireland. The agency has assessed the respective values account of the views of the people of Northern Ireland. in each case with regard to the current Northern The proposed 2009 tariff scheme brings Northern Ireland rates for equivalent injuries. These descriptors Ireland’s scheme closer to the Great Britain criminal can be added to the tariff by replacing the existing list injuries compensation scheme of 2008. It removes a of injury descriptors with a new list which includes the number of anomalies which we are convinced are no new descriptors and by updating the index. longer justifiable. For example, how can we pay different The Compensation Agency, with the agreement of amounts of criminal injury compensation in different the Criminal Injuries Compensation Appeals Panel parts of the United Kingdom for the same injury? In for Northern Ireland, has recommended an additional addition, why should someone who suffers an injury 74 new descriptors, shown in the copy of the tariff in Belfast receive more compensation than someone included with the Explanatory Memorandum. That with the same injury in Bristol or Brixton? version of the tariff is identical to the augmented tariff We propose this change at a time in Northern for which approval is being sought, but it helpfully Ireland when the security and political situations have highlights those injuries which we are seeking to add significantly improved and the need for special measures to the list. has, in the main, ended. The proposed scheme is not a I move on to the Northern Ireland Criminal Injuries precise copy of the Great Britain scheme and limited Compensation Scheme 2009, a draft of which was laid differences have been retained, but the introduction of before this House on 28 January 2009. The Northern a new criminal injuries scheme will bring about a Ireland Criminal Injuries Compensation Scheme 2002, greater uniformity of entitlement to criminal injuries 807 NI Criminal Injuries Compensation[LORDS] NI Criminal Injuries Compensation 808

[BARONESS ROYALL OF BLAISDON] Separately, a new criminal injuries compensation compensation across the United Kingdom. However, scheme is an opportunity to bring the Northern Ireland a small number of differences between the two schemes scheme into closer alignment with the Great Britain remain. The new Northern Ireland scheme retains the scheme and so to bring about a greater uniformity of position of setting no cap on compensation that can entitlement to criminal injuries compensation across be paid in any one case. In contrast, the GB scheme the United Kingdom. sets a cap of £500,000 on the maximum payment paid As Northern Ireland moves closer to an ever more under the tariff for loss of earnings and special expenses. politically stable society, improvements in security and Another difference is in the area of multiple injuries. politics continue to evolve to produce a place where Arrangements in Northern Ireland currently take greater special arrangements for compensation for criminal account of the overall effect of multiple injuries than injuries are no longer needed. This new scheme is a those in Great Britain. In both schemes, awards are significant advance towards that place. made on the basis of adding the tariff value of the I commend the Draft of Alterations to the Northern first injury, 30 per cent of the tariff for the second and Ireland Criminal Injuries Compensation Scheme 2002 15 per cent for the third injury when calculating an and the draft Northern Ireland Criminal Injuries award. In Great Britain, payments for subsequent Compensation Scheme 2009 to the House. injuries are not made, whereas in Northern Ireland there will be a payment of 10 per cent of the tariff rate for each further injury. Viscount Bridgeman: My Lords, I am very grateful We are also retaining the use of trusts for minor to the noble Baroness for her detailed explanation of applicants. In Northern Ireland, when an application the orders. I also thank her for making her officials is from a minor, under the age of 18, the award is held available at short notice this afternoon to brief me and in trust until the applicant becomes 18 years old. No my team. We found that very useful. equivalent provision exists in Great Britain. This I can say at the outset that it is not our intention arrangement ensures that payments made before an from these Benches to oppose these orders. Indeed, in applicant turns 18 are safeguarded from misuse either so far as they can be said to represent a normalisation by the claimant or by any other family member. of the position in Northern Ireland, we wholeheartedly The new scheme does not completely replicate the support them. descriptors in the Great Britain scheme; there is one Perhaps I may deal with the criminal injuries difference. The 2009 scheme does not include a descriptor compensation scheme. I accept that the amendments for temporary mental anxiety, which in Great Britain to the 2002 order are necessary as a housekeeping allows for one-off payments of £1,000 for mental exercise. I welcome the convergence that the 2009 anxiety lasting more than six weeks. Previous experience order helps to bring about between the Northern in Great Britain regarding this particular injury has Ireland scheme and that operating in the rest of the been mixed, and the Northern Ireland priority has United Kingdom. This is a very positive step in the been to focus resources on the more serious injuries. transformation of the Province into a post-conflict In Great Britain, under the Tribunals, Courts and society. It is our belief that the sooner this happens the Enforcement Act 2007, the Criminal Injuries Appeal better, not least for the people of Northern Ireland. Panel ceased to exist and appeals are now made to the There is just one point in the Minister’s explanation First-tier Tribunal. The relevant legislation covering on which I should like clarification. I hope that I did criminal injury compensation in Northern Ireland remains not miss it. Will she explain why there is no upper limit the Criminal Injuries Compensation (Northern Ireland) in the Northern Ireland scheme when there is one for Order 2002 and existing arrangements for making the rest of Great Britain? I certainly take her point appeals through the appeals panel remain unchanged about the greater propensity in Northern Ireland for under the proposed scheme. claiming compensation, despite the rate of violent The Northern Ireland Office consultation on the crime being proportionately lower than in England proposed Northern Ireland Criminal Injuries and Wales. Will the noble Baroness share her opinion Compensation Scheme 2009 was launched on 6 March on whether the changes made by the order can be and concluded on 4 June 2008. The responses to the expected to have an influence on bringing the rate of consultation are summarised on the Northern Ireland claims in Northern Ireland more into line with the rate Office website. There were a total of 11 responses, of claims made in the rest of the United Kingdom? which, on a general level, provided a range of views With those two reservations, I very much support the from those who agreed that compensation levels should order. be the same throughout the UK to those who took the opposite view and argued against any reduction in criminal injury compensation levels in Northern Ireland. Baroness Harris of Richmond: My Lords, I too, All the issues raised by respondents had been previously thank the Lord President for introducing the statutory raised and considered as part of the development of instrument. It appears to be a very sensible provision the proposed policy change. Having considered all the to close existing loopholes within the current compensation responses from the consultation exercise, no amendments scheme and we are content to support its provisions. were made to the proposed scheme. I am pleased to bring forward these proposals. The Lord Browne of Belmont: My Lords, I thank the Government consider all the award levels and additions Lord President for presenting these schemes to the to the 2002 scheme to be appropriate. The measure is House this evening. The passage of both the Northern limited and modest, but welcome. Ireland Criminal Injuries Compensation Scheme 2009 809 NI Criminal Injuries Compensation[4 MARCH 2009] Criminal Damage Order 2009 810 and the Draft of Alterations to the Northern Ireland adverse effect on them. I shall have to respond to the Criminal Injuries Compensation Scheme 2002 should noble Lord in writing in respect of the upper level. I rightly receive swift and smooth passage through this am grateful for the support and am delighted that House, so in support I intend to be brief. henceforth payments for criminal injuries in Northern Referring to the alteration to the criminal injuries Ireland will be broadly in line with those in the rest of scheme initially laid down in 2002, it is both important the United Kingdom when these schemes have been and timely that when previously undetected injuries debated by the House of Commons. are sustained our legislative provisions are able to Motion agreed. provide just as adequately as they do for more conventional offences. Acknowledging that until now compensation Draft of Alterations to the Northern has been available in the event of a victim sustaining a criminal injury that was not included in the 2002 tariff, Ireland Criminal Injuries Compensation it is important that our system for administering such Scheme 2002 a scheme is able fully to process an individual application. Motion to Approve As this alteration will allow just that, I offer it my full 8.17 pm support. Turning to the Northern Ireland Criminal Injuries Moved By Baroness Royall of Blaisdon Compensation Scheme 2009, which not only amends That the draft scheme laid before the House on the rates of compensation available across the injuries 17 December 2008 be approved. outlined in the original tariff but includes the additional Relevant Document: 3rd Report from the Joint 121 injuries that would be provided for if the scheme is Committee on Statutory Instruments. amended by the aforementioned alterations, I shall make the following observation. Without anticipating Motion agreed. any opposition in your Lordships’ House, may I say that the tenor of some of the responses received to the Northern Ireland Bill consultation missed the point? While criminal injuries First Reading compensation and the tariffs generally are higher in 8.17 pm Northern Ireland than those in place for the English and Welsh schemes for reasons of historical legacy, it The Bill was brought from the Commons, read a first is not appropriate to argue that such a disparity should time and ordered to be printed. be maintained. Although all noble Lords have been advised through the briefing papers that victims of Criminal Damage (Compensation) violent crime in Northern Ireland are three times more (Amendment) (Northern Ireland) Order likely to apply for criminal injury compensation, the 2009 scheme should not be approached from the belief that Motion to Approve either compensation satisfactorily deals with the pain and suffering caused by a criminal injury or that 8.18 pm compensation is what victims expect. It simply ameliorates Moved By Baroness Royall of Blaisdon the unnecessary and unwarranted effects they have suffered. Therefore, an effective reduction in line with That the draft order laid before the House on the scheme that exists in England should not be feared. 17 December 2008 be approved. I support the amendment. Relevant Document: 3rd Report from the Joint Committee on Statutory Instruments. Baroness Royall of Blaisdon: My Lords, I thank Baroness Royall of Blaisdon: My Lords, the Criminal noble Lords for their strong support for these measures Damages (Compensation) (Northern Ireland) Order and for their recognition that they represent a move 1977 provides a right to claim compensation from the towards normalisation in Northern Ireland, which we Secretary of State for loss suffered to property as a all welcome. result of damage caused in Northern Ireland by an The noble Viscount, Lord Bridgeman, asked about unlawful assembly of three or more persons, by terrorist the upper limit in Northern Ireland, to which I shall acts, or as a result of malicious or wanton damage to respond swiftly. He wondered whether the changes agricultural property. might contribute to the rate of claims made in Northern This amendment arises from concerns about an Ireland being lower and more in parallel with claims increase in attacks on community halls in 2007. This made in the United Kingdom. I can only suppose that increase ran against the trend of a low and reducing that is a possibility. It will be monitored and it will be number of such attacks in previous years. The increase interesting to see what the rate of claims is in future. in criminal attacks on community halls has highlighted Of course, we strongly believe that all those who suffer both their general vulnerability and the difficulty that injury should and must claim. It is their right to do so. they may have in meeting the current criteria for I am also grateful to the noble Baroness for her support. eligibility for statutory compensation under the 1977 In response to the noble Lord, Lord Morrow, I note order. Their location and relative isolation has often all that he has said. In respect of those who suffered affected claims for criminal damage compensation, injuries not covered by the current descriptors, I can where the PSNI has experienced difficulty in obtaining say that their claims have been properly assessed evidence on whether the damage was caused by either throughout and were met in full. The fact that their three or more people, or to certify that damage was the injuries were not covered by the legislation had no result of terrorist or paramilitary activity. 811 Criminal Damage Order 2009[LORDS] Criminal Damage Order 2009 812

[BARONESS ROYALL OF BLAISDON] relies for its definition of community hall, and further The aim of the draft order is to create an additional analysis of community halls that are currently exempt route to compensation for community halls. There is from rates under Articles 41(2)(e) and 41A of the no readily available definition of what constitutes a rating legislation. community hall, so it is proposed that buildings which The calls for the provisions to be extended to include are exempt from rates under Article 41(2)(e) or Article 41A sporting, cultural and heritage support organisations of the Rates (Northern Ireland) Order 1977 should be would widen the scope of the legislation far beyond its eligible for statutory compensation. intention of being a focused measure. That would Article 41(2)(e) and Article 41A cover all properties have far-reaching and indeterminate implications for that have been granted rates exemption on the basis criminal damage budgets, as it would move the that the rates authorities are satisfied that their use, or Government into the position of being virtually the availability for use, is for charitable purposes as set out insurer of first resort and seriously distort the commercial in the Recreational Charities Act (Northern Ireland) insurance market. It would also take scarce resources 1958. The 1958 Act defines as charitable the provision, from other priority areas. or assisting in the provision, of facilities for recreation It is clear that the GAA and other cultural and or other leisure-time occupation, if the facilities are heritage organisations provide valuable services and provided in the interests of social welfare. I understand facilities to local communities, and I acknowledge that that a very wide range of facilities will benefit from the they have on occasion been subject to criminal attacks. order. By way of illustration, it will cover facilities as However, where a GAA hall, or any hall, is exempt diverse as the Ardoyne Youth Club in Belfast, the from rates under Article 41(2)(e) of the Rates (Northern Loup Women’s Group in County Londonderry, the Ireland) Order 1977 it will be eligible to claim Indian Community Centre in north Belfast and compensation under this proposal. The Government’s Ballinderry Road Orange Hall in Lisburn. conclusion is that the legislation should not be broadened The Northern Ireland Office consulted widely on to include properties that do not meet the proposed these proposals and also referred them to the Northern criterion. Ireland Assembly. Ministers also met the Orange Order, The Government have looked carefully at the SDLP’s the Gaelic Athletic Association and the insurance suggestion that access to compensation should focus industry in considering how to frame this proposal. on the nature of the attack, not the status of the Broadly, the draft legislation was welcomed by all building. However, this would require a fundamental respondents. The majority of responses—14 out of 21— change in the Government’s approach and would offer called for a sunset clause to be removed. The SDLP a less certain mechanism by which to determine eligibility expressed concerns that coverage was not wide enough, for compensation. The Government do not think this thought the measure had not been adequately equality- suggestion sufficiently addresses the practical difficulties proofed and suggested that any approach should focus in obtaining the necessary evidence regarding intent. on the nature of the attack, not the status of the building. On balance, the Government’s approach provides a The Gaelic Athletic Association also called for the surer approach to sustaining community infrastructure draft legislation to be amended to include the GAA when it comes under criminal attack. and other sporting, cultural and heritage organisations. The Northern Ireland Assembly’s ad hoc committee The Government noted the concerns that including a made recommendations on the sunset provisions, sunset clause might in some way limit the effectiveness equality-proofing and publicising the new arrangements. of this legislation and, after careful consideration, I have already spoken about the sunset clause and removed the sunset clause from the draft order. equality impact assessment. In relation to publicising An equality screening exercise on this proposal was the new arrangements, the Government propose that carried out. It determined that there might be a higher the commencement of this legislation is publicised uptake by the Protestant or unionist communities and by means of a press campaign. Furthermore, the men, reflecting the greater number of community Compensation Agency will amend its forms and processes halls owned by the Protestant or unionist communities so that the rates exemption status of future claimants and the fact that some of these properties have been will be readily identified. specifically targeted for attacks. By linking with rates Future costs will depend on the scale of attacks on legislation relating to charitable usage, the Government community halls. However, based on historic levels of are seeking to focus on the disadvantage that arises to claims received and acceptance rates, the Government users of community halls, not just those who own estimate that up to an additional £300,000 per year them. The proposed additional criterion applies equally will be paid in criminal damage compensation relating to all claimants that will fall within the definition of to attacks on community halls. community halls, regardless of their membership of The Government’s intention is to provide an additional Section 75 groups. route to statutory criminal damage compensation to The Government have concluded that the Northern assist all eligible community halls where they are subject Ireland Office has met its statutory obligations under to criminal damage. This order will provide support Section 75 and that further assessment of the policy’s and assurance to community halls, facilities that play impact on the promotion of equality of opportunity is a vital but often underappreciated role in maintaining not required. In reaching this conclusion the Government and sustaining the social infrastructure in the areas have taken careful account of the screening exercise they serve. I am pleased to bring forward these proposals. that was carried out, the purpose of the proposed I consider the additional criterion to be timely, legislation, which has the same policy intent that proportionate and welcome, and I commend the draft underlies the current rating legislation on which it to the House. 813 Criminal Damage Order 2009[4 MARCH 2009] Criminal Damage Order 2009 814

Viscount Bridgeman: My Lords, I am again grateful disagreement with the Government; the case can be to the Lord President for explaining this order. As she made that the GAA is a very wealthy organisation, is said, it relates to a tightly defined category of community perhaps more akin to some of the wealthier rugby halls, which I understand includes not only halls used clubs in Northern Ireland and is therefore not like the by one of the two main communities in Northern essentially penniless organisations that the Government Ireland, but facilities used by youth groups and ethnic are trying to help tonight. My difficulty is that, although minorities. The Lord President gave us examples. This I agree with the Government, I am uneasy that there is order provides an easier route for them to receive no one in this House to put the other case. It brings compensation in the event of criminal damage. We on home to us again the problem of the absence of these Benches are content that this list is narrowly representation from the nationalist community in defined. I agree with the Lord President that the Northern Ireland. That, to some degree, is the product Government should be providing assistance to isolated of a decision by the political representatives of that community halls with limited resources, which have community, but does the Lord President share my little other recourse in the event of suffering criminal unease on that point? damage. I was given examples of community halls that were burned at night, when it is obviously quite impossible to know how many people took part in the crime. We Lord Browne of Belmont: My Lords, I am pleased also accept that it is impractical to widen the scope to to support this legislation, which will give the trustees sporting and other organisations. Indeed, the Lord and users of community halls across Northern Ireland President made the point that that could be seen as the a much needed boost. Those who once had the unenviable Government becoming the insurer of first resort, which burden of trying to prove that their community hall or must clearly be avoided. I have a certain admiration meeting place, which was most likely in an isolated for the ingenuity with which the rates criterion was rural setting, had been attacked by three or more invoked. It is a very tidy. We support this measure. people, often in the dead of night, should now have one less hurdle to jump if their hall is attacked. Baroness Harris of Richmond: My Lords, I, too, Since 1977, one feature of the criminal damages thank the Lord President for introducing the order. compensation system in Northern Ireland dictated Community halls are vital in strengthening and that, for criminal damage of more than £200, a chief maintaining the social infrastructure in the communities constable’s certificate was required to receive they serve, so any criminal damage caused to them compensation. The most difficult part of that process puts huge financial pressure on the communities that was proving how many perpetrators had carried out have to repair them. This order is very much welcomed the attack. To satisfy the criteria, you had to prove by these Benches. The Lord President spoke about the either that three people had carried it out or that one concern expressed by the ad hoc committee of the individual had done so on behalf of a proscribed Northern Ireland Assembly about the equality impact organisation. In rural Northern Ireland, that was and screening of the proposals. That has been addressed, still proves to be an almost impossible task. As a which addresses the Assembly’s concern. I have only result, not-for-profit community halls were faced with one question for the Lord President: what work has unbearable repairs and limited resources and, as time been undertaken to ensure that the order is not vulnerable passed, insurmountable insurance premiums that to challenge? Otherwise, we support the order. inevitably led to the closure of many necessary facilities that offered a much needed focal point in their local 8.30 pm community. Lord Bew: My Lords, I, too, thank the Lord President This amendment to the criminal damage legislation for introducing the order. Unlike the instrument we is regrettably necessary simply because such attacks discussed earlier, this order is not so much a mark of are not rare. When the Northern Ireland Assembly Northern Ireland’s progress towards normalisation considered this legislation before producing its report but of the phases of disruption during that progress. for Parliament’s consideration, representatives of the The spike in attacks on, for example, Orange halls, is Grand Orange Lodge of Ireland gave a breakdown of unfortunately part of the context of this order. attacks on their halls from 1971. The total was almost In the case of the previous statutory instrument, 300 attacks throughout that period. In 2007, a time of the trend was towards normalisation. On the tendency peace in the Province, 28 Orange halls were attacked. of the people of Northern Ireland to claim three times There were four major incidents, and in a fifth incident more than citizens in the rest of the United Kingdom a JCB was driven through a set of gates. A further for criminal injury, I am informed that not so long ago three halls were completely destroyed and razed to the they claimed six times more than the citizens of the ground. rest of the United Kingdom, so even there the trend is Such attacks are undoubtedly politically motivated towards normalisation. and have continued since that time. As a result, members In this case, however, we are dealing with something and the local community at large have been frustrated different: the remaining abnormality of the Northern in their attempts to socialise both culturally and religiously. Irish situation. The steps that the Government have Regardless of one’s political beliefs, that should be taken to tackle the situation of isolated community abhorred and condemned. That is why the legislation halls and the context created by the attacks on some of will have a very positive effect. Until we reach the them are entirely wise and reasonable. I have only one stage at which people no longer feel motivated to carry difficulty. The Lord President referred to the fact that out such attacks, we will be in a position to ensure that the GAA and the SDLP disagreed with aspects of this they do not succeed in their aim of closing halls and proposal. My essential difficulty lies not in any removing facilities from those who wish to use them. 815 Criminal Damage Order 2009[LORDS] Borders, Citizenship and Immigration 816

[LORD BROWNE OF BELMONT] Baroness Miller of Chilthorne Domer: Clause 51 Finally, I commend the Government for the sensible brings in a duty regarding the welfare of children in way in which they have approached this legislation. the carrying out of immigration and nationality functions. They have maintained its focus, refused to allow the We certainly welcome this duty to act in regard to the creation of public insurance of the first instance and welfare of children. We feel that it would have been removed the original sunset clause that was proposed. even better if the new Bill incorporated the key sections I support the order. of the UN Convention on the Rights of the Child. However, we certainly welcome the recognition in this Baroness Royall of Blaisdon: My Lords, I am very clause of the importance of including those functions. grateful for the strong support from the noble Viscount, The purpose of my amendment is to see the extent Lord Bridgeman, and the noble Baroness, Lady Harris. of this duty. My amendment would insert the words, The noble Baroness asked what work had been undertaken to ensure that the order would not be vulnerable to “who are in the United Kingdom”, challenge. Legal advisers have received the proposal as it is not clear whether the clause covers the UKBA and are fully satisfied that it meets equality requirements staff based abroad, immigration functions at juxtaposed under Section 75 of the Northern Ireland Act 1998. controls, entry clearance points and escorted removals We, too, are confident that it meets all the necessary from the UK. Of course, the clause is modelled on requirements. Section 11 of the Children Act 2004, which, interestingly, The noble Lord, Lord Bew, quite rightly said that is not restricted to children who are in the UK. The the trend that necessitates the order is contrary to the inclusion of this caveat might be because the Government trend that we discussed earlier. That is regrettable, as continue to be very worried that if they make this was clearly articulated by the noble Lord, Lord Browne, clause any stronger and have a need to safeguard and to whom I must apologise for calling him the noble promote the welfare of children beyond a point that Lord, Lord Morrow, earlier. The recent trend is regrettable, they remain in the UK, it might impede UKBA staff but we trust that it will be temporary. I am sure that from carrying out their immigration functions; for the Northern Ireland Assembly will reflect on these example, removing a child and their family from the issues in due course when the trend has gone the other UK at the end of the asylum process if their claim has way. failed and their appeal rights have been exhausted. The noble Lord, Lord Bew, also mentioned the We do not think that such a fear is founded. The GAA. I assure him that my colleague, Paul Goggins, Government’s own admission is that that would not be has had meetings with the GAA and that very strong the case because during the passage of the Section 11 views have been expressed, quite rightly, by the nationalist legislation, to which I have just referred, Ministers community. I also have some sympathy with his view stated in the House, that the views of the SDLP and other nationalists “We have been very careful in the way in which we have cannot be expressed in this House because there are worded this clause: we do not put a duty on agencies that would no Members from that community. I am very conscious make them unable to fulfil their primary functions″.—[Official of that, and I regret it in many ways. I am delighted Report, 17/6/04; col. 995.] that Northern Ireland has such a strong voice in this The exploration of exactly what the Government mean House, but it would be very good if there was a voice is important when it comes, for example, to the forcible from the nationalist community as well as from the removal of unaccompanied asylum-seeking children Ulster Unionist and other Protestant communities. I to their countries of origin. That has raised a number hope that this will be addressed in due course, but I do of issues. Although it is not always easy to obtain not wish to comment further at this stage. information on exactly what happens in such cases, I hope that communities in Northern Ireland will they continue to cause some concern. I hope that the continue to be sustainable and that the facilities which Minister will be quite clear on the extent of this clause they use will be properly maintained, thanks to the and on the functions of UKBA, which it will cover. I order. I am grateful for all contributions this evening. beg to move. Motion agreed. 9pm 8.38 pm The Deputy Chairman of Committees (Baroness Fookes): I remind the Committee that if Amendment 112 Sitting suspended. is agreed I cannot call Amendment 112A by reason of pre-emption. Borders, Citizenship and Immigration Bill [HL] Lord Ramsbotham: I have put my name to this Committee (Third Day) (Continued) amendment because it is extremely important, bearing 8.55 pm in mind the responsibility of British officials who are serving, for example, in consular and other posts Clause 51: Duty regarding the welfare of children overseas and should understand all the issues involved. In particular, if you go through the implications of the amendment, the training of people in the issues concerned Amendment 112 with children is important for those officials as well. I Moved by Baroness Miller of Chilthorne Domer understand that the Home Office has suggested that 112: Clause 51, page 41, line 16, leave out “who are in the this amendment might be inappropriate because it United Kingdom” might suggest that British officials overseas should 817 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 818 involve themselves in such activities as the exploitation a quite small phrase. It is, however, an important of children in employment in certain factories and so phrase because all of our officials should be having on. That is not the point. The point is that all people regard to the welfare of the child, and all of us are who deal in any way with children being returned from pretty worried about the number of children who have the United Kingdom should understand all the issues, entered this country. We do not know the numbers or including those to do with child safety, so that they why they are here but mostly, whether for benefit can give proper advice to those who are responsible fraud or whatever, it is not for very desirable reasons. for making decisions in this country, which makes the training and understanding of those people all the Baroness Morris of Bolton: I was unable to speak at more important. Second Reading, but I thank the Government for recognising the importance of the amendment that we Baroness Hanham: I, too, have added my name to won last year during the passage of the Children and this amendment. There should be a requirement to Young Persons Act 2008, and for bringing forward a care for children in transit. There is a danger that duty in this Bill, children who are passing through the country may not “to safeguard and promote the welfare of children”. get quite the same attention from the border agency as We won by a resounding number, because it was the others who are coming in. That might be helpful. right thing to do. However, I share the concerns of the noble Baroness, Lord Hylton: I agree with my noble friend Lord Lady Miller, and my noble friend Lady Hanham that Ramsbotham that it would be better to leave out the these amendments express: that duty should not just words, apply to children who are in the UK, but have equal “who are in the United Kingdom”. application to children who come into the sphere of However, the noble Baroness, Lady Hanham, has activities of the UK Border Agency staff abroad or made a very important point about transit. In the past when a child is in transit, particularly as it could year or two there have been more suspicions and enormously help the identification and early support perhaps some actual proof of children being trafficked of trafficked children. We should never underestimate into or through Britain for purposes of benefit fraud. the high regard in which this country is held. That This is a fairly new kind of trafficking, which I ask the extends to our embassies, to the British Council and to Government to take very seriously. all other agencies of the state operating beyond our shores, where people would, quite rightly, expect to be Lord Avebury: I wish to underline what my noble treated with courtesy and consideration—and that friend said about the juxtaposed controls. That is should be especially true of children. particularly important, bearing in mind the powers of During the passage of the Children and Young officials to detain any person in the juxtaposed controls, Persons Act, I met an exceptional young man from the Channel ports, where people, including children, Afghanistan. His parents saved all the money that may be questioned and detained for a certain length of they could, then they sent him, with a group of others, time. The juxtaposed controls are so important because to England to live a safer life—and who could blame oversight of them is less intense. I think I am right in them? He was 15, and it took him a year and a half to saying that the chief inspector has once been to look walk most of the way to England. He is now in care, at them. They do not have the same intense scrutiny by flourishing and enjoying school, and wants to be a the voluntary agencies that places of detention in the doctor. For all of the children and young people who, United Kingdom enjoy. The risks to a child of being ill for whatever reason, find themselves in his position, I treated in such a place, where a lot of the staff contractors should like to think that their experience of Britain employed by the Secretary of State are not direct will be good and positive, and that they will be properly UKBA officials, must be accentuated. looked after—wherever and for however long they are I am really puzzled as to why it was thought necessary in our care. to confine this obligation to the United Kingdom. I should be grateful if the Minister would explain how The Earl of Listowel: I apologise to the Minister the UK Border Agency code of practice for keeping and to your Lordships, for the Minister helpfully children safe from harm applies in the juxtaposed arranged a timely meeting with Jeremy Oppenheim, controls as it does in the United Kingdom. the Children’s Champion, earlier this week. It was arranged at fairly late notice late last week and I was Baroness Howe of Idlicote: I, too, am keen to support involved in a conference and visiting a children’s home this amendment and I raised the issues at Second outside London. II would very much have liked to Reading. A lot of points have already been identified. have contacted some Members of the Committee so Clearly, to have on the other side of the border, from that they could have been at that meeting and heard which various people will want to come into this the responses from Jeremy Oppenheim. Some of tonight’s country, staff who are not as well educated and trained debate might perhaps have been curtailed in consequence. to have proper regard for the welfare of the child—I I apologise to the Minister and I am most grateful. agree entirely with my noble friend on that point—as The meeting was extremely helpful. we are all now rightly required to do, can be very dangerous. I hope, with other noble friends, that either The Parliamentary Under-Secretary of State, Home this can be explained to our satisfaction or that the Office (Lord West of Spithead): It became apparent at Government will go and think carefully about removing Second Reading that, in terms of intent, we all feel 819 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 820

[LORD WEST OF SPITHEAD] another country. I remind the Committee that the this clause to be our own—I think that the noble duty will apply to any function carried out in relation Baroness, Lady Morris, referred to that—so I can be to immigration, asylum, nationality and any general sure that it is generally welcomed and the right way to customs or border revenue function carried out on go. I understand that these probing amendments define behalf of the Secretary of State. This will include the some of the details and I welcome the opportunity to handling of children whose contact with the border debate this important clause, which places a duty on force is as passengers who are in transit through the the Secretary of State to ensure that immigration and UK and who seek a short stay of 48 hours to accomplish customs functions are discharged that. “having regard to the need to safeguard and promote the welfare Passengers who are in direct transit and transferring of children”. straightaway to a connecting flight do not need to seek Subsection (4) places a similar duty on the Director of entry to the UK and no immigration function is Border Revenue. carried out. The duty would not therefore apply in I begin by considering Amendments 112 and 114, those circumstances, although the staff will of course since they both seek to extend the duty to children involve the police if there are reasonable grounds for outside the United Kingdom. As your Lordships know, believing a child in these circumstances to be at risk of Clause 51 seeks to replicate the effect of Section 11 of harm. the Children Act 2004, which already applies such a The noble Baroness, Lady Miller, asked about the duty to a range of public bodies including local authorities, extent of Section 11 of the Children Act. As I mentioned, the National Health Service, the police and youth that applies only in England, whereas this provision offending teams. Section 11 applies only to England, applies across the whole of the United Kingdom. The whereas the duty in Clause 51 applies throughout the noble Lord, Lord Ramsbotham, asked about training United Kingdom, which sensibly reflects the geographic of officials—quite rightly so. Children’s needs feature extent of the jurisdiction of the UK Border Agency. in the training that we give to entry clearance officers However, these amendments seek to take the duty a overseas, who also receive briefings from the International step further, and to require the border force to discharge Organisation for Migration on trafficking awareness. its functions having regard to the welfare of children The noble Lord, Lord Avebury, asked how the UKBA not just in the UK, but worldwide. On the face of it, code applies to juxtaposed controls. Section 1.13 states: this may seem an attractive proposition, but it is not “UK Border Agency staff overseas will also refer children to practical. The duty in Clause 51, supported as it will the authorities of other countries where local or international be by guidance which we will discuss later, is based on agreements permit or require”. the systems in place in the United Kingdom and This applies in particular to juxtaposed controls when cannot simply be transplanted to other countries, which agreement exists with the French authorities, as the may have entirely different arrangements. Moreover, it noble Lord mentioned. I hope that, in the light of that is likely that those countries would consider it to be clarification and those answers, noble Lords will be interference in their jurisdiction if the UK border content not to press their amendments. force were to seek to assume the same level of responsibility for local children as it would for children in the United Kingdom. Baroness Miller of Chilthorne Domer: I thank all We think, therefore, that our formal responsibilities those who have spoken. I thank in particular the noble under this duty have to be confined to children who Baroness, Lady Morris of Bolton, for reminding us are in the United Kingdom. This common-sense approach that we do these things because they are right, particularly is in line with, for example, the United Nations Convention with regard to children. I still have some queries, on the Rights of the Child, which also limits the because I had understood that Section 11 of the responsibilities of state parties to children within their Children Act applies to any authority—for example, jurisdiction. the police—which has to escort a child, even though it may be overseas. Perhaps the Minister will tell me However, we accept that UK border staff have a whether I am wrong about that. The noble Earl, Lord responsibility to take appropriate action if, in the Listowel, has obviously heard a great deal that we course of their duties, they come across children overseas have not. Perhaps I should be reassured by that, whom they believe to be at risk of harm. They might, because he is usually very questioning, but sadly I am for example, be suspicious that a visa application for a not entirely. child was being made for the purposes of trafficking. If harm is suspected, we would expect the staff to There are still a couple of areas that I am concerned inform the local law enforcement authorities and/or about. One is that the Minister did not mention the deny a visa, as appropriate. issue of private contractors. I am sure that they are covered by the provisions and await his assurance that The UKBA introduced a statutory code of practice they are. I raised the issue because some of the most for keeping children safe from harm, which came into extreme cases of which I have heard, although I have force on 6 January. That code sets out the expectation not observed them myself, have been of the dawn raids that the border force staff overseas will make referrals and removals of families, of course including children, to overseas authorities where local or other international for whom it is traumatic to be taken from their beds at agreements permit or require it. four in the morning with their family and taken away Amendment 112A seeks to ensure that the duty in in the dark in a van. I should think that that runs the clause applies to children whose presence in the counter to this clause; I do not think that it will United Kingdom is for the purpose of transit to comply once the Bill has gone through. 821 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 822

Will the Minister reassure me on the issue of private let them know that it is happening. In other words, the contractors as well as the dawn raids for deportations? country would not be in the category of those where I will read carefully what he said and will take the one would, perhaps, not want to mention it in case it opportunity to talk further to the noble Earl, if he is ended up being worse for the family and child. They happy to do so, about his view on this. We may return have to be countries that we have agreements with. to the matter on Report, but I shall leave a little gap Clearly, when it comes to something such as getting a before I withdraw it to see what the Minister has to say visa, or anything that applies in this country, all these on those two points. rules apply.There is a whole raft of different conditions— such as other conditions in the Children Act—that 9.15 pm apply. We will come to them in later amendments. They cannot possibly all be applied on someone else’s Lord West of Spithead: I assume that the noble territory; we would feel rather annoyed if someone in Baroness is talking about a “dawn raid” in this country; this country started handling children on UK territory of course, this Bill covers anything that happens in this in the way that they felt was right under their law. We country. Our responsibility for looking after children would be upset by that. All that we are saying is that is covered by that, because it is taking place in this we cannot do that. country. As for escorting children overseas, when it is carried out by UKBA staff or contractors, the duty Baroness Miller of Chilthorne Domer: I can accept will apply. What we cannot do is require the duty to what the Minster is saying and I am sorry to have to apply on the soil of another territory. That is where labour the point. However, what if, for example, a the difficulty lies. child abroad has made an application through a consular To my knowledge, Section 11 applies only in England. post? In such a case, a refugee’s children—who are If it is different from that, I shall come back on that. minors—may make an application for family reunion. But as I understand it, that is where it lies. They would apply to join a parent who had been accepted as a refugee by the UK. In cases such as the Lord Avebury: I shall just probe the Minister a little one that we are being told about, it has taken several further about the juxtaposed controls. Here you have a years of litigation before a challenge to the refusal to situation that is unique, in that the children are in the the child succeeded. During this time the children custody of the UKBA. Certain powers have been suffered severe psychological and physical ill health. granted to the UKBA by agreement of the French and That happened on the soil of another country, but the Belgian authorities; they allow us to detain, to question, consular post is dealing with that application. That is to search, and so on, those persons who come under not really interfering in the affairs of the country the juxtaposed controls. That includes the children. If because it absolutely has to do with the child’s application all those functions have been transferred from the to this country. That is one reason why we want to state that has jurisdiction, why could they not transfer look into this a little further before Report. also the obligations to safeguard welfare of the children? It would also be tremendously helpful if the Minister could send a note to tell us how, when families—including Lord West of Spithead: All I can say—and I cannot children—are taken from their own homes to detention go into detail on that—is that UKBA staff have to centres or aeroplanes, that will work with the new refer to the authorities of other countries in those Clause 51. Will there still be dawn raids? If so, will juxtaposed control conditions in France. I can write to there be additional safeguards? Will they no longer the noble Lord on the detail of that, but that is the exist because Clause 51 will preclude them? Could the situation as it stands at the moment. As for private Minister think about sending us some notes on what contractors, the answer is that, yes, these provisions the new guidance will be when Clause 51 comes in? include them at Clause 51(1)(b). Lord West of Spithead: I do not see any problem with that. I think we will come to more of the details Baroness Howe of Idlicote: I shall just probe a little in other amendments. If, after that, the noble Baroness further on this. Is the Minister saying that if, on the would still like a note, I have no difficulty in sending other side of a border, in another country, embassy one with those details. Maybe I have not been clear staff are suspicious that there may be an ulterior about the situation in which this applies. Whether the motive in some of the trafficking that is going on duty applies is absolutely determined by whether the involving children, they would alert people at this end? child concerned is in the UK or overseas. The location Will they be trained sufficiently to do just that, so that of the border staff exercising this duty is immaterial; it as, when or if any of those individuals and children is a matter of where the child is. For example, a come over, border staff will be sufficiently alert to deal grandmother could apply for a visa to travel to the with the situation? Are we satisfied that that is happening UK to care for a sick grandchild. Because the child is now? If not, what is in this Bill that will make it more in the UK, the border force would have to consider the effective? application, having regard to the need to safeguard and promote the welfare of the child. This would be Lord West of Spithead: The position as regards the case despite consideration taking place outside the children abroad, as I say, is that our people are trained UK. It depends on where the child is. and taught what to look for. If they see something that they feel is wrong happening with a child, they will Baroness Miller of Chilthorne Domer: I thank the contact the authorities if the country that they are in is Minister for that. I realise that we may go over some of one where we are able to deal with the authorities and this detail again later but I am sure that, in any case, 823 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 824

[BARONESS MILLER OF CHILTHORNE DOMER] protection that the law provides for very young children. we will welcome the sight of some draft guidance on I thank other noble Lords and outside organisations, this. I will mull over everything that has been said and including the Immigration Law Practitioners’ Association look again at any gaps, if any still appear after I have and the Refugee Children’s Consortium, for their reread what the Minister has said. work in this area and for their briefing. There is a very real and dangerous loophole that I The Earl of Listowel: Before the noble Baroness want to explain to the Committee, but I want to make withdraws the amendment, may I make one remark? the point that while we applaud the Government for This is clearly a complex matter. I am a little concerned carrying forward Clause 51, which is largely thanks to that, at this stage of the Bill, we may be making quite my noble friends on the Opposition Benches, none of definite interpretations of what this clause means. us can say that this Bill fully covers the welfare of This might be seen by others as setting a precedent children unless we look at the lacuna that has arisen in and setting out quite clearly what needs to be done. the present law. I know that the Government share Perhaps it is indeed better for us to come back to this. I absolutely the aim of protecting the youngest and think of this in particular with regard to whether the most vulnerable members of society because they have duty operates with a child on our soil or another told us that on innumerable occasions. It is my fervent country’s soil. I can imagine a situation, for instance, hope, therefore, that the noble Lord will take on board of a school party going abroad and the teacher still what I and other Members of the Committee have to being bound by Section 11 of the Children Act. If say and accept these amendments. UKBA officials were dealing with the child in Calais If we return to the debate on the 2004 Bill, now the they might still be bound by the safeguarding elements Act, when the provisions on the trafficking of children in the Bill. I am a little concerned that we should wait in what is now Section 4 of the Asylum and Immigration until the next stage of the Bill to look at this a little (Treatment of Claimants, etc.) Act 2004 were being more closely. debated, we can chart the course of this story. The Government accepted that their original drafting of Lord West of Spithead: I share the noble Earl’s that Bill was inadequate to deal with the trafficking of concern. I am sorry that I did not acknowledge that babies and young children and, potentially, other people fact but I am delighted that he was able to have that with special vulnerabilities. The Government amended briefing. This is a complex area and having a briefing the Bill to address that. It was considered at the time like that is useful because it lets one see the broad by some in this House that the government amendment, perspective. I hope it was useful. which is now part of Section 4 of the Act as passed, was inadequate and hence an amendment was tabled to address that. Baroness Miller of Chilthorne Domer: I absolutely agree that this is a complex area. That is why it would At Report in your Lordships’ House on the Asylum be a shame to curtail this discussion and not have it and Immigration (Treatment of Claimants, etc.) Act again on Report. Any additional information the Minister 2004 my noble friend Lady Anelay raised the risk of a can send to us in the mean time will be welcome. I beg lacuna and was supported by many other noble Lords. leave to withdraw the amendment. The concern then, as now, was that the trafficking provisions were suitable to help only those people who Amendment 112 withdrawn. were in a position to know that they were being trafficked. The noble and learned Baroness, Lady Amendment 112A not moved. Scotland of Asthal, offered an assurance that the Government did not think that the lacuna existed; and said that in any case the courts would be able to Amendment 112B construe Parliament’s intention. The noble and learned Baroness referred to the doctrine in Pepper v Hart Moved by Baroness Hanham 1993, AC593, which held that a reference can be made 112B: Clause 51, page 41, line 24, at end insert “including the to ministerial statements in Hansard only if legislation prevention of trafficking of children” is ambiguous. Under the Pepper v Hart doctrine, if it is not ambiguous, the courts cannot look at the case. Baroness Hanham: I hope that the Minister will be able to accept these amendments today because they 9.30 pm reflect a most serious concern that has already been It seems that the existing legislation is not ambiguous: referred to—the trafficking of young children. The it covers only those people who are aware that they are first two amendments in this group can be seen as being induced or coerced. A baby, or a very young or providing belt and braces support for Amendment 117B. vulnerable person, cannot be in that position. They That amendment effectively inserts into the Asylum fall foul of a loophole in the law. The Crown Prosecution and Immigration (Treatment of Claimants, etc.) Act Service does not consider that the existing legislation 2004 the additional considerations that a person is allows it to prosecute in certain cases of child trafficking. being exploited if he or she is under 18 and in a The result of this can be seen in the Peace Sandberg position of vulnerability or subject to an abuse of case. Noble Lords may remember that on 16 May power. 2008, Peace Sandberg was jailed for 26 months at It has not been easy to get this clause into the Bill, Isleworth Crown Court after being found guilty of but this is the most effective of closing the loophole facilitating illegal entry into the United Kingdom. The that the Government have allowed to arise in the illegal entry in question was that of a baby, believed to 825 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 826 have been purchased in Nigeria, allegedly so that Miss Lord West of Spithead: I am grateful to the noble Sandberg could claim to qualify for priority housing Baroness and to other Members of the Committee for in this country. Importantly, Miss Sandberg was not seeking to ensure that the duty will apply to any work prosecuted for trafficking, because it was concluded done by the UKBA to prevent trafficking of children. that Section 4 of the Asylum and Immigration (Treatment Such is the purpose of the two amendments here, as of Claimants, etc.) Act 2004 was inadequate to capture well as an amendment seeking to apply the duty to all the trafficking of babies and very small children. children. That is the situation that our amendment is designed On Amendment 112B, human trafficking, as the to prevent. It is no good to say that offenders will be Committee agrees, is an appalling crime. Our overall caught and prosecuted for another offence, as in the aim is to make the United Kingdom a hostile environment Peace Sandberg case, because we cannot always know for trafficking and to protect its victims. The United that that will be the case. There is a problem with the Kingdom therefore adopts a victim-centred approach existing law: many organisations say so. Our amendments to combating trafficking, including child trafficking. would fix that problem. They would ensure that babies This is embodied in the UK Action Plan on Tackling and young children are covered by the Act. I feel sure Human Trafficking, updated in July 2008, which has a that no one on any Bench in your Lordships’ House specific chapter on child trafficking and their care. would argue against strengthening the Bill in its protection The duty to safeguard and promote the welfare of of the most vulnerable. We are dealing with a disgusting children applies to all children in the UK encountered crime and I feel hopeful that the Minister will accept by the UK Border Agency in the discharge of its our proposals. I beg to move. functions, which includes the prevention of trafficking and enforcement activities. Lord Hylton: In the previous group of amendments, On December 17 2008, we ratified the Council of perhaps I should have mentioned that when children Europe Convention on Action against Trafficking. are trafficked for the purposes of benefit fraud, often This sets out minimum standards of care for victims they may be disguised as children travelling in the care of trafficking. Within that, we are giving specific of a relative. That is another instance where great consideration to the needs of child victims. We are vigilance is needed. also compliant with other relevant international Amendment 117B in this group is important. Members instruments, including the UN Protocol to Prevent, of the Committee, as well as the Government, will be Suppress and Punish Trafficking in Persons, especially aware of cases, usually in the London area, where Women and Children, and the EU framework decision young people have been imported, mainly from Vietnam, on trafficking which sets out EU legislation on this as forced and exploited labour for cannabis-growing issue and also has a focus on child victims and their houses or plastic domes. I hope, but do not know, that welfare. the police have this form of crime more or less under control. If they have not, the amendment could be While immigration considerations are important, helpful in dealing with it. trafficking is a much wider issue. Human trafficking is viewed primarily as a serious organised crime by Baroness Howe of Idlicote: I also support the international bodies such as the UN, by the UK amendment. It may well be that it can be explained in Government and by law enforcement agencies such as a way that will satisfy all of us who are concerned the Serious Organised Crime Agency, for which combating about the whole issue. The way in which the noble organised immigration crime, including human trafficking, Baroness, Lady Hanham, explained the issue and the is their second-highest priority. It therefore includes, history leading up to it reminded me very much of the but is not limited to, immigration considerations. debate we had on it at that time. We would therefore An amendment to include combating trafficking in want a fairly specific answer to it. the list of immigration functions of the Secretary of State is therefore not appropriate. However, it is also Baroness Miller of Chilthorne Domer: We on these not needed. We already take a victim-centred approach Benches are grateful to the noble Baroness for tabling to combating trafficking. I trust that the noble Baroness the amendment. Although we will not know exactly will be content to withdraw the amendment. how many young children and babies, in particular, The second amendment seeks to say that all children are trafficked, the Minister may have in his briefing in the United Kingdom will be included in the duty. the number of prosecutions that there have been and The amendment is unnecessary because the current the penalties given to the prosecuted traffickers. Giving definition already applies without any qualification or us an idea of the scale of prosecution would be reservation to all persons under the age of 18. I should helpful. I certainly have no idea about that at the like to reassure Members of the Committee that we moment. have no intention of treating children in the immigration system any differently from other children in the UK. The Earl of Listowel: I speak to Amendment 116; I Quite the opposite; we have said on numerous occasions hope that I am not speaking out of place. It might be that every child matters as much if they are subject to interpreted as also including those children and young immigration control as if they are British citizens. To people about whom there is some uncertainty as to that end we have deliberately adopted the definition of whether they are children or adults. This has been a children in the Children Act 2004 to achieve parity bone of contention for a long time. I look to the noble with the duty in Section 11 of that Act. Perhaps I may Lord, Lord Avebury. It may be better to save this for a remind your Lordships that Section 65(1) of the Children later debate. Very good; I will. Act 2004 states that “child” means a person under the 827 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 828

[LORD WEST OF SPITHEAD] Lord West of Spithead: Whilst I am not aware of age of 18, and we have used the same definition. The the specific issue that the noble Lord, Lord Hylton, duty proposed in the Bill is therefore already a general raised about the cultivation of cannabis, that is a duty that applies to all children. The amendment is criminal offence. If the police were to encounter children not needed for it to be fully effective. in that situation, they would pursue the culprit who The third amendment covers a serious situation, was doing that and safeguard the children they found. but it is perhaps not the most appropriate means of preventing the wrong that is intended. Human Baroness Hanham: I am enormously disappointed trafficking is not limited to sexual exploitation, and with the Minister’s reply. As he read out his brief he the Government are committed to tackling it in all its might have anticipated that I was going to be disappointed. forms. Section 4 of the Asylum and Immigration I found the response bland and I found it completely (Treatment of Claimants, etc) Act 2004 criminalises unsympathetic to the points that were being raised. the trafficking of people, including children, for There seems to be an absolute lack of comprehension non-sexual exploitation. Concerns that young people of the reason behind this amendment. It has been might not be sufficiently protected were raised at that found that you cannot prosecute for the trafficking of time, and the Act strengthened. Section 4(4)(d) of babies—which happens—and the very young child that Act makes it an offence to arrange or facilitate who cannot be in the position to know they are being the entry into the UK of a young or vulnerable trafficked. They are being exploited, not necessarily person with the intention of requesting or inducing for drugs, but they may very well be being exploited actions of benefit to another person, that a person for sale, adoption or another reason. with the advantage of age would most likely refuse. This involves the Peace Sandberg case that the noble This is so important that there is no question that I Baroness, Lady Hanham, was referring to, which fits will not come back to it. We are being advised strongly directly into that. by people who represent those who have to deal with this problem and who understand the legal situation This ensures we cover exploitation without curtailing that the law is not strong enough. The law cannot do legitimate activity. The amendment before us is what it says it is meant to do. Simply, for the Minister unsatisfactory because it defines as exploited any child to think that I will walk away from this is probably to who is in a position of vulnerability. Therefore there is misunderstand me. We will not walk away from this; a risk, and it could easily be done this way within law, we will come back to it on Report. If, in the mean of criminalising legal activities, such as bringing children time, the Minister would like his officials to help us to to the UK for altruistic purposes, to participate in get an amendment that will absolutely close this loophole, competitions, cultural visits, choirs and so on. I will be very happy to discuss it with anyone. If we do The Government understand the concerns behind not get that situation, we will divide the House, and I the amendment. We have some sympathy with that, think that we will win. For today, I beg leave to and have previously committed to keeping the legislation withdraw the amendment. on human trafficking under review. We intend to look into this matter further and address any situations Amendment 112B withdrawn. where exploitation takes place in a trafficking context, but is not covered by the offence, as part of our considerations of the forthcoming Bill to simplify and 9.45 pm consolidate immigration legislation. We aim to publish The Deputy Chairman of Committees: Amendment this in draft before the end of this parliamentary 113? Not moved? Session. There will be an opportunity for consultation on particular issues. On this basis I hope that the noble Baroness will feel able to withdraw her amendment. Amendment 113 Moved by Lord Ramsbotham Baroness Miller of Chilthorne Domer: I understand 113: Clause 51, page 41, line 31, at end insert— why the Minister would not be able to give me figures “( ) In issuing and reviewing any such guidance the Secretary for those prosecuted for trafficking— of State must take into account any guidance issued for the purposes of section 11 of the Children Act 2004 (c. 31) (arrangements Lord West of Spithead: I was trying to not go on for to safeguard and promote welfare) and of section 17 of the too long, because I was looking at the clock. The Children (Scotland) Act 1995 (c. 36) (duty of local authority to figures are 103 for sexual trafficking, seven for labour child looked after by them).” trafficking, three for conspiracy to traffic—a total of 113 up to February this year since the Sexual Offences Lord Ramsbotham: I would be sorry if this amendment Act 2003 came into force. were not moved, because it is extremely serious. It applies to the application of the Children Act 2004, Baroness Miller of Chilthorne Domer: I thank the particularly two aspects of it: first, the arrangements Minister for that—that is heartening. Perhaps he would to safeguard and promote the welfare of children and, like to also publish at some point the sentences that secondly, to take into account any guidance that has those people received. Can he give me an assurance been issued for the safeguarding of children. that the trafficked children—even if they were working Various groups of children concern me under the in the circumstances described by the noble Lord, category of immigration. First, there are the immigration Lord Hylton—are never prosecuted, because they are, detainees who are held in detention centres, many of as the Minister correctly said, the victims of trafficking? whom are held for far too long. There is a further 829 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 830 amendment discussing the question of detention, so I Baroness Miller of Chilthorne Domer: I was initially shall not detain the Committee at this stage on that embarrassed at my slowness at finding the papers to issue. move the amendment but once I heard the noble Lord, Lord Ramsbotham, I was extremely glad that he moved Secondly, a very large number of people—certainly it, incredibly ably. His name was on the amendment hundreds and said to be thousands—have come into and he has much greater expertise than I do. this country as children, underage, and have disappeared. Whenever you hear, for example, discussions around No one knows where they are. This is a matter that I a local government table about corporate parenthood have raised before in the context of the Health and and so on, I cannot recall an occasion when they have Social Care Act. Who is looking for them? Who is included the children we are talking about this evening. trying to find them? I welcome the fact that the It has always involved children who were born and Government have recognised the need for the Children lived in the area and this issue is almost entirely Act to apply to this group of children. I am enormously overlooked. The noble Lord has raised some serious grateful for the briefing that I and other Members matters about how these systems intermesh, because received from the Refugee Children’s Consortium, the in a lot of agencies they simply do not. Immigration Law Practitioners’ Association and the Refugee Legal Centre, which mentioned the problems Lord Hylton: My noble friend Lord Ramsbotham of dealing with the children whom we know about—but was absolutely right to move the amendment. The who is looking for the children whom we do not know whole area is one where children and young people about? can fall between many stools and there are quite frequently gaps between one form of authority or There are in existence local safeguarding children service and another. boards, which have been set up by statute. The Minister has already mentioned the fact that those boards have I will mention my own experience in dealing in the core membership that includes local authorities, health matter of disappeared children. About seven or eight bodies, the police and others. I have called before for a years ago, the social services in Sussex had a safe census to be done by these local safeguarding bodies house not too far from Gatwick and therefore suitably to discover how many of these children are in their located for caring for such children. However, considerable areas of responsibility, where they are and what is numbers of children, several dozens at least, disappeared happening to them. No one else is capable of doing so. from that safe house. Subsequently, we were promised If the UKBA now has an obligation under the Children that there would be a kind of national safe house, Act, what is the relationship between the UKBA and probably in the London area, which would be operated the local safeguarding children boards regarding the by a voluntary organisation. I do not think that that children who appear, if we are not careful, to be falling ever came off. between the cracks of the two? All the same, children have gone on disappearing both from placements with foster parents and from I shall go on to ask further questions of the Minister, children’s homes run by local social services. The because it seems to me that there is a great danger in question that my noble friend raised about who is allowing just the mention of looking after children responsible for looking for those who have disappeared under the responsibility of the UKBA to go without is very relevant and needs to be followed up. looking at all the other implications of this. Who is There are fears that in some cases children who actually responsible for inspecting the conditions in disappeared were somehow spirited away to west Africa which immigrant detainee and asylum-seeking children or re-exported from this country.It is a very serious matter. are held by social services all around the country? To ease the burden on the social services that are adjacent Baroness Hanham: Perhaps I may raise a small, to the airports or ports of entry, children have been though not unimportant, matter. I understand that distributed all around the country to individual social the Home Office has just decided to withdraw funding services to be looked after. Their conditions are very from the Refugee Council Children’s Panel. That panel different. Some are in bed and breakfast accommodation. has been very involved in the sort of work that the Some are given education, others are not. Who is noble Lord, Lord Ramsbotham, has been talking responsible for looking after this issue? The Council about. It helps to make decisions on the age of children for Social Care Inspection was abolished recently and in this country and generally keeps an eye on them. If replaced by Ofsted. Is the UKBA talking to Ofsted the Minister does not know the answer tonight, I about the inspection of the facilities in which these should be extremely grateful if he would write to let asylum-seeking and immigrant children are being me know why this money has been withdrawn and looked after? what possible alternatives are being put forward to protect the children in the way that the children’s panel We were going to just let the amendment go by has been doing. The panel has been absolutely central default, but it seems to me to be a “tip of the iceberg” to safeguarding and promoting the welfare of children amendment. I really would like confirmation from the in the United Kingdom, and it would enormously Minister that all these other implications of the looking- raise the stakes on Clause 51 if the proposed Home after of children under the terms and conditions of Office procedures were to stand without its expertise Section 11 of the Children Act 2004 really have been and support. looked into and that all the other agencies with statutory responsibilities for helping and, particularly, for looking Lord Avebury: I am very glad that the noble Baroness, after these people who nobody knows anything about Lady Hanham, raised this matter of the withdrawal of are being investigated. funds from the children’s panel. It seems to me 831 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 832

[LORD AVEBURY] I have used the children’s panel in the past to take incongruous to talk about safeguarding children and, advice or to sound it out about Yarl’s Wood, and in particular, the disappeared children referred to by found it very helpful. These experts with long experience the noble Lords, Lord Ramsbotham and Lord Hylton, are just what we need if we are to protect children. It is when the money that might be used to ascertain what a matter of concern and I hope that the Minister can has happened to these children and to look after them reassure us. if they are recovered from whoever took them away I also want to ask about the production of the has been cut off. guidance for Clause 51. May I have an assurance that We are talking about quite a serious problem. In there will be a close partnership with the Department 2007, 3,500 separated children arrived in the UK from for Children, Schools and Families and what it has places such as Afghanistan, Iraq, Iran, Somalia, Eritrea done with Section 11? The new children’s champion and Ethiopia. Until now, the children’s panel has been who has taken on the mantle of Jeremy Oppenheim is working to help these young people, who range in age Christian Armstrong, so I should be interested to hear from 10 to 17, to access services and to help them what meetings with the DCSF there may be for him in through the asylum system. The advisers on the children’s the future and to be kept abreast of the programme of panel help as many separated children as they can, meetings that they may have. although their services are concentrated in London and the south-east, through one-to-one casework, and 10 pm they have drop-in services and surgeries. They work with those who are particularly vulnerable, including Baroness Howe of Idlicote: I have listened to this those who are trafficked. exchange, which on top of the other concerns on the My impression is that the children who have previous amendment are really important. I was very disappeared, especially those who have been placed in concerned by the anger of the noble Baroness, Lady the custody of local authorities, are in fact trafficked Hanham, that greater attention was not being paid to and would not have disappeared from the system trafficked children. There are far too many of them for voluntarily. I feel that someone has a hold on them, a country which prides itself that such a thing could enabling them to come from the custody of a foster never happen here, but it has been happening. To hear parent or children’s home or wherever they are located that the money is being withdrawn from some of the to be used for nefarious purposes within the United organisations that are active in this field is not good Kingdom. I do not think that it is very credible that news at all. I hope that the Minister can assure us that they would be sent back to West Africa, as the noble if there is a good reason for taking away money from Lord, Lord Hylton, suspected is sometimes the case. this group—nothing has given us any reason to believe that that is so—similar sums of money will be made Why are we cutting off money from the children’s available to other people who will pursue those interests panel at the very moment when we are ostensibly rather more vigorously. safeguarding the welfare of the children? Does that not seem extremely incongruous, and can the Minister tell us whether there is any possibility that the Government Lord West of Spithead: I am grateful to Members of will reconsider this niggardly and untimely stinginess? the Committee for raising the issue of guidance, which is a crucial element in the implementation of the new The Earl of Listowel: I thank the noble Baroness, duty in making it clear to the UK Border Agency, our Lady Hanham, for bringing up this very important customers and other bodies with whom we work what point. I am not sure but I believe that the future of the the duty means in practice. I am glad to have the panel has been uncertain for some time. I think that opportunity to discuss this more fully. there was a threat of the money being withdrawn, and Clause 51(3) requires a person exercising the now some money is being given for next year so that immigration, asylum, nationality or customs functions some of its work can continue. in subsection (2) to have regard to any guidance given However, I was comforted by the Minister’s response by the Secretary of State for this purpose. Subsection (5) at Second Reading, when he recognised the importance requires the same of anyone exercising a function of of people working on the front line and having front-line the Director of Border Revenue. Amendments 113 experience. We talked about the morale of the case and 115 would require the Secretary of State in turn, managers. I also spoke to Jeremy Oppenheim about when issuing and reviewing such guidance, to have the changes that he has been bringing about. He has regard to guidance issued under Section 11 of the introduced the case management system so that individual Children Act 2004 and Section 17 of the Children case managers can follow a case from the beginning to (Scotland) Act 1995. the end and build a relationship with the asylum These amendments are unnecessary. It is already applicant. However we legislate, if we do not have our intention that the guidance to support Clause 51 people on the ground with experience and expertise to will be developed and issued jointly with the Department inform us of what is being done, we will not get what for Children, Schools and Families—a point made by we ultimately need. During the passage of the Children the noble Earl, Lord Listowel—and will reflect closely Act 2004, the noble Lord, Lord Laming, said again the existing Section 11 guidance, about which I will and again that the Children Act 1989 was very good say more shortly. Before I do, I should also make a but that unfortunately it was being poorly implemented. technical point about the references to Scottish legislation. We can legislate all through the night but if we do not Section 17 of the Children (Scotland) Act 1995 is not have people on the ground with experience and expertise, analogous to our new duty, and thus not an appropriate we will not get the outcomes for children that we want. model to follow for the following reasons. 833 Borders, Citizenship and Immigration[4 MARCH 2009] Borders, Citizenship and Immigration 834

Section 17 sets out the duty of a local authority to a bodies, including NGOs, in the drafting process. The child looked after by the local authority. This is a amendments make a specific point about taking account wholly different relationship from that between UKBA of the Section 11 guidance when the guidance on this and the children it deals with in the UK immigration clause is reviewed. In view of the very close relationship system. Section 17 section sets out that the local between the two that I have described, it will be authority’s duty to safeguard and promote the welfare obvious that neither could be reviewed without reference of children shall be a paramount concern, whereas to the other and that this aspect of the amendments is our new duty is to have regard to the need to safeguard also unnecessary. and promote the welfare of children when exercising A couple of specific points were raised. One of the specific functions. Section 17 is also a duty for the issues raised by the noble Baroness, Lady Hanham, local authority to make services available to children was also touched on by other speakers. It is the withdrawal and to take steps to promote relations and contact of funding from the Refugee Council’s children’s panel. between the child and the person with parental We have agreed to fund it to carry out substantially responsibilities. Again, this is quite different from the same services as in previous years; the only significant UKBA’s role. change is that we will no longer fund it to liaise with Let me now return to the substance of the amendment local authorities on age assessment. Instead, on that and the relationship between our guidance and the issue, we will go direct to trained social workers in existing Section 11 guidance. It might assist noble local authority children’s services departments, and Lords if I describe the existing statutory guidance on we are providing additional funding for authorities making arrangements to safeguard and promote the with the largest number of such cases. Far from dropping welfare of children under Section 11. The guidance is money and taking it away, we are spending slightly divided into two parts. Part 1 sets out the general more in a slightly different way. arrangements to safeguard and promote welfare, which The noble Lord, Lord Ramsbotham, asked about all bodies subject to the duty must have in place. It missing children. If children from overseas go missing, includes strategic and organisational arrangements the police are immediately informed and normal police such as senior management commitment to children; procedures are followed. The borders staff attend a clear statement of the agency’s responsibilities towards local safeguarding children boards where issues are children that is available for all staff; staff training; raised involving children from overseas. The noble effective inter-agency working; and so on. Part 1 also Lord, Lord Ramsbotham, also asked about the highlights some of the ways in which the duty affects relationship between the border force and LSCBs. The direct work with children and families; for example, in Clause 51 duty will ensure that the border force fits the need to ensure that children are listened to and within the inter-agency arrangements set out in Section taken seriously; to be clear when to refer children in 11 of the Children Act. That includes liaison with the need to other agencies; to keep good records; and so local safeguarding children boards. He also asked on. Part 1 is drafted in such a way as to be relevant to whether we can confirm that the full implications of all the different bodies that are subject to the duty and looking after children that are contained in Section 11 to enable them to apply it in ways appropriate to their of the Children Act are being looked into. We are own functions. We think that Part 1 as drafted is exploring with the Department for Children, Schools equally relevant to the UKBA and should apply in the and Families how the Section 11 duty will apply in same way. strategic arrangements and in the framework for In Part 2 of the guidance, there are individual co-ordinating with other agencies. That will be set out chapters devoted to each individual organisation to in detail in the guidance accompanying the new which the duty applies. This is because the duty applies duty. The noble Earl, Lord Listowel, asked about differently to each and every body or organisation to guidance on this liaison. I assure him that we have had which it relates because it always applies within the a close partnership in formulating that guidance. The context of the specific organisation’s exercise of its new children’s champion will be meeting DCSF, and I specific functions. We will produce something along have no doubt that, as part of his introduction to his similar lines for the UKBA. It will set out the UKBA’s work and his new role, he may well contact noble primary functions, including those of the director of Lords. border revenue, and the main areas where it has a I hope that the noble Lord is sufficiently reassured contribution to make to safeguarding and promoting to withdraw the amendment. the welfare of children in the exercise of those functions. Although the duty applies to all functions, it will be of Baroness Hanham: I am lost in admiration all the greater relevance to some than others—for example, in time for the work of local authorities—I am a member relation to identifying possible victims of trafficking. of one, so I declare an interest as such—but I am not The guidance will also set out how we will give effect at all sure why the children’s panel must now pass one to some of the broad organisational and strategic of the most important aspects with which it deals to a arrangements in Part 1 in the specific context of the local authority. Perhaps we could have a note some border force. time on the exact reasons behind this and what the As the amendment recognises, the Section 11 guidance children’s panel will be left to do if it is not doing this. applies to England only. Therefore, in addition to The Minister said that there would be extra money, working closely with DCSF, we will also work with the but it seems to me that the local authorities will spend devolved Administrations to ensure that our guidance the money that the children’s panel would have been takes proper account of the different arrangements in spending on finding out what age a child was. We need place elsewhere, and we will also consult other external a little more clarity on this, if we may have it. 835 Borders, Citizenship and Immigration[LORDS] Borders, Citizenship and Immigration 836

Baroness Miller of Chilthorne Domer: There is a bit Lord Ramsbotham: I am sorry that we should end of an issue here. If the local authorities are the very this evening on a disappointing note. There is nothing ones that are failing in their duties to these children, personal in this; the noble Lord, Lord West, and I and the children’s panel would have discovered these have known each other for long enough to realise that failures but the local authorities will now be judge and that would not apply. When I was a member of the jury on this, there will not be the same third-party Independent Asylum Commission, we summed up the checks, so far as I understood what the Minister said attitudes of the Home Office and the UKBA to all the about how the funding will work now. points that were being put to them as a culture of disbelief. What worries me about the brief that the noble Lord read out was that it was the culture of The Earl of Listowel: I have one small point to add. disbelief writ large. I was amazed that it should be I understand that the children’s panel has been particularly suggested that people reported to the police that people effective in the past year at recognising children who had gone missing. Who had reported them to the have been held in detention mistakenly as adults. police? Which people knew that they had gone missing? Indeed, it has recognised more in the past year than in I am incredulous. previous years, so it may have the expertise to do this The Minister mentioned two things: that various difficult and complex job well and to protect children things were being examined and that guidance was well who have been mistakenly placed in the adult being produced. In view of the questions raised by system. I am sure that we will come back to this. It will noble Lords all around the Committee throughout be interesting to learn exactly how this will work in the our discussions today and on earlier parts of the Bill, I best interests of children. do not think that it would be responsible of us to let this part of the Bill go without further question. I hope, therefore, that to guide our discussions on Report, Lord Avebury: It would be useful to have this the Minister can share with us the guidance and the information before next week, because one of the policy which they propose to put out so that we can amendments that is coming down the track is about subject it to the same sort of examination that we have age assessment. If we know the answer to the question put the Bill through, in the hope that we make it asked by the noble Earl, Lord Listowel, and my noble workable on behalf of the people whom we are trying friend, it would very useful in informing our next to look after. With the request that we should be discussion. provided with that information before Report stage, when I promise we will bring this matter back, I beg Lord West of Spithead: I agree. That is a very good leave to withdraw the amendment. point; I have no difficulty with it at all. I am particularly unqualified to guess people’s ages, because I always Amendment 113 withdrawn. get them very wrong. If we are doing this particularly Amendments 114 to 116 not moved. brilliantly at the moment, I will be fascinated to find out why we should change the way in which we do it. Clause 51 agreed. Generally, administrators do not aim to cock things up, if noble Lords will excuse my French. They do House resumed. things for good reasons, so I will certainly get back to noble Lords and explain why this is happening. House adjourned at 10.15 pm. GC 305 Arrangement of Business[4 MARCH 2009] Health and Social Care Act 2008 GC 306

Alongside the regulations there is a revised code of Grand Committee practice which sets out the nine compliance criteria and guidance that the commission will use to judge Wednesday, 4 March 2009. whether registered NHS providers of healthcare are complying with the regulation on HCAI. It will be an Arrangement of Business offence to fail to comply with the regulation and registered providers may be prosecuted. On summary Announcement conviction, this could result in a fine of up to £50,000 for each offence, as set out in these regulations. The 3.45 pm Act also gave the commission a range of other enforcement The Deputy Chairman of Committees (Lord Paul): powers to use where providers are not complying with Before the Minister moves that the first statutory requirements. These include: the power to suspend or instrument be considered, I remind noble Lords that cancel registration, the power to issue a warning notice in the case of each statutory instrument the Motion or a fixed-penalty notice, and the power to attach before the Committee will be that the Committee do conditions to a provider’s registration. The greater consider the statutory instrument in question. I should range of enforcement powers enables the regulator to make it clear that the Motion to approve the statutory take a more flexible and proportionate approach to instrument will be moved in the Chamber in the usual breaches of registration requirements. This will benefit way. patients by encouraging quicker progress in tackling infections. These regulations set out further details in relation to fixed-penalty notices and set the penalties Health and Social Care Act 2008 at between £1,250 and £4,000 depending on the offence. (Registration of Regulated Activities) A number of administrative matters are also set out, Regulations 2009 such as the timescale for payment. Until 2010 the new Care Quality Commission will Considered in Grand Committee continue to regulate private and voluntary healthcare providers and adult social care providers under the 3.46 pm Care Standards Act 2000. These providers will continue Moved by Baroness Thornton to have to comply with the regulations and national minimum standards under the 2000 Act, which include That the Grand Committee do report to the House requirements on infection control. In 2010 the registration that it has considered the Health and Social Care Act system under the 2008 Act will be widened from 2008 (Registration of Regulated Activities) Regulations covering just NHS providers to cover private and 2009. voluntary health and adult social care, and with a Relevant Document: 3rd Report from the Joint wider set of safety and quality requirements. Committee on Statutory Instruments. If the registration system is to operate effectively and transparently it is important that the public and Baroness Thornton: Last October we brought into commissioners have access to information about services force the legislation to set up the Care Quality and service providers. These regulations make a number Commission—the new single regulator for health and of provisions to ensure that information about the adult social care. The noble Baroness, Lady Young, commission’s regulatory action is available and they has given us a daily countdown to CQC kick-off. The require the commission to keep a register of persons draft regulations before us now are part of a package registered as service providers. The regulations also of secondary legislation which will enable the commission make a number of provisions requiring the commission to take on its functions from 1 April this year. to make public information relating to certain enforcement action it has taken. The commission is authorised to Part 1 of the Health and Social Care Act 2008 make certain other information available. provides for a new registration system for the regulation of health and adult social care. These regulations are The Act requires the commission to notify PCTs, the first step in bringing the NHS into a system of local authorities, strategic health authorities, Monitor registration for the first time, alongside the independent and anyone else it considers appropriate when it issues and voluntary sector and social care providers. At certain notices, such as a notice proposing cancellation present NHS providers are required to comply with of registration. However, to ensure that these requirements the code of practice for the prevention and control of are not overly burdensome, Regulation 9 sets out healthcare-associated infections issued under the Health certain exemptions from this requirement, such as Act 2006. The regulations before us carry forward the where notices relate to certain administrative matters essential requirements of the existing code and place such as the process of considering and granting initial them into the new legislative framework. Regulations applications for registration. Regulation 10 sets out 3 and 5 require NHS providers of healthcare to be further details about who must be notified. registered with the commission and to meet a single In carrying out its functions the commission will registration requirement on the protection of persons need to look at documents and information as well as against identifiable risks of healthcare-associated talk to providers and those using the services. The infections. The regulations cover the same providers commission will need in the course of carrying out its that are obliged to comply with the existing code. In functions to question people for explanations of any January we laid an order enabling the registration relevant matters. These regulations set out the people process to begin. who must provide an explanation to the commission if GC 307 Health and Social Care Act 2008[LORDS] Health and Social Care Act 2008 GC 308

[BARONESS THORNTON] The second question relates to an issue that is requested to do so. The Act makes it an offence for strictly outside the scope of the regulations but which these persons to fail to comply with a requirement bears closely on them. As I mentioned a moment ago, from the commission for an explanation of a matter. the registration process for independent sector healthcare The regulations will give the commission a stronger providers is being tackled more gradually and the aim role in relation to the provision of healthcare by NHS is to accomplish that by 2010, at which point those bodies and in tackling HCAIs. These are the first in a bodies would cease to be subject to regulation under series of regulations that will be brought before the the Care Standards Act 2000. What enforcement powers House to widen the registration system across providers will the CQC have during that transition period in of health and social care services. I commend the relation to independent sector healthcare providers regulations to the Committee. and, for that matter, providers of adult social care? Legally speaking, is the CQC fully able to monitor and regulate those bodies during the next 12 months as Earl Howe: First, perhaps I may apologise to the tightly as we would wish it to do, and does it have the Minister for being slightly late. I shall of course read resources to do so? the opening sentences of her speech, those that I missed, in Hansard. I thank her for introducing these The CQC has said that it will not hesitate to use the regulations, but because of the helpful briefing session range of enforcement powers at its disposal if it needs that she was kind enough to organise a couple of weeks to do so. Can the Minister assure the Committee that ago, I have only a very few comments and questions. if in the last resort a provider of healthcare has its registration removed and thereby loses its right to be a The CQC’s task of registering all providers of health provider, safeguards will be in place to protect the and social care is a very considerable one, so it is not quality of patient care during the transition to a new surprising that the Government have allowed it to be provider? Although the power to issue fines as a tackled in two stages. The regulations we are looking penalty for poor service and poor infection control is at provide only for the registration of NHS providers, undoubtedly a strong deterrent, there is in practice a and then only in relation to a single set of requirements, downside to such fines. When NHS bodies are called namely those covering healthcare-acquired infections. on to pay fines, they will need to divert money from It is understood that further registration requirements elsewhere in their budget to do so. In certain circumstances, will be introduced for these NHS bodies next year and one could imagine money being diverted from frontline that adult social care providers and the independent patient care, which is the very opposite of what patients healthcare sector will also be brought within the scope deserve in a situation where, if anything, they need of the new regime in 2010. enhanced protection. Will the Minister comment on If we focus on this initial round of registrations, the that and will the CQC bear in mind that, in some first question that arises is whether there is a performance situations, the imposition of a fine would run counter threshold below which the CQC will simply refuse to to the interests of the NHS organisation and of patients? register a provider and, if so, what that threshold is. Finally, how often will the proposed register of Those may sound like odd things to ask, but if these persons providing services be updated and verified? requirements are to mean anything, surely it is essential Does the Minister agree that regular and thorough that every NHS body should have to demonstrate a vetting of the list will be important? minimum acceptable standard of cleanliness and hygiene and an acceptable recent track record in rates of healthcare-acquired infections if they are to qualify Baroness Barker: I, too, thank the Minister for for a registration certificate. But what is that standard? introducing the regulations and for the very helpful The Healthcare Commission in general has done a briefing that she and the relevant officials provided to good job in driving improvements in this area, but we us a couple of weeks ago. There is a degree of interest know that a number of NHS trusts have been found in this because these are the first of the regulations seriously wanting in their recent performance on HCAIs. that will enable us to see just how the Health and In those cases, what action has the CQC insisted be Social Care Act 2008 will be implemented and how the taken, or what improvements has it insisted on seeing CQC will assume responsibility for an area of work before agreeing to issue a registration certificate? Rather that all noble Lords would agree has been carried out like a game at a fairground where everyone is a winner, extremely effectively by the predecessor bodies. Both are we in practice looking at a 100 per cent success rate the Healthcare Commission and CSCI have in the in the NHS bodies up for registration? Are any conditional course of their work and by their reports driven up registrations being agreed? standards in this area. It is important to understand how strict and how I have many of the same questions as the noble stern the CQC is being with providers with a poor Earl, Lord Howe, but I want to ask a few more. Can track record. We know from the Government’s own the noble Baroness define for us what is an offence? Is figures that MRSA affected around 6,000 people in an offence the same thing as an incidence? Are different 2006-07 and C. difficile about 56,000. The numbers incidences of healthcare-acquired infection different may be falling, but they are still very high. Indeed, we offences? If they are, the potential penalties become of would all say that they are unacceptable. It would be a different order. Potentially, they will become a large helpful to hear from the Minister whether the CQC is imposition on what in future will be a much broader simply focusing on the existence of systems within range of much smaller providers. Although we tend to provider trusts, or are they also looking at the quality think of acute hospitals when we think about healthcare- of those systems in terms of the results actually being associated infections, we should not forget that the achieved? infections that have been mentioned are prevalent in a GC 309 Health and Social Care Act 2008[4 MARCH 2009] European Parliamentary Elections Regs. GC 310 lot of social care settings and, in particular, residential The noble Earl asked how often the register will be homes. If a small-scale provider of residential care updated. The Act allows for it to be live and to be ultimately becomes subject in 2010 to the same fine done on an ongoing basis. The noble Baroness, Lady regime as a large acute hospital, that will have a Barker, asked about an offence being a breach of the disproportionate effect. registration requirements. Of course, issuing a penalty That is the first thing. The second is that I, too, have notice is only one of the CQC’s enforcement powers, been thinking about the fact that in 2010 the independent so it would be for the CQC to choose the most sector will come under this regime. Has the department appropriate action in any given situation. As for the continued to think on in that vein about what happens independent sector coming under this in 2010 and if NHS patients exercise their right to seek treatment what will happen if people decide to seek treatment abroad if they have not been able to receive treatment abroad, the CQC’s remit applies only to care in England. in the United Kingdom? How do these orders relate to I hope that I have covered all the points raised by that? Looking to the future, what happens if individual noble Lords, but I shall look at what they have said budgets and direct payments bring in a whole tranche and write to them if I need to provide a more satisfactory of small-scale healthcare providers? Who will regulate or full answer. I thank noble Lords for their comments them? on these regulations. This is an interesting order, and I will be interested Motion agreed. in the Minister’s response. It is a fair reflection of the legislation that this House passed last year. European Parliamentary Elections 4pm (Franchise of Relevant Citizens of the Baroness Thornton: I shall tackle the different points raised by the noble Earl and the noble Baroness, Lady Union) (Amendment) Regulations 2009 Barker. I thank both noble Lords, who have been Considered in Grand Committee helpful in the discussions we have had, which I, too, found very useful. 4.05 pm The noble Earl raised the issue of the threshold. The regulations are underpinned by the revised code Moved By Lord Bach of practice for the NHS, which I referred to in my That the Grand Committee do report to the House speech, on the control of healthcare-associated infections that it has considered the European Parliamentary and the related guidance, which was published alongside Elections (Franchise of Relevant Citizens of the Union) the draft regulations under the powers given to the (Amendment) Regulations 2009. Secretary of State by Section 21 of the 2008 Act. This Relevant Document: 5th Report from the Joint Committee new code sets out the criteria that the Care Quality on Statutory Instruments. Commission will use to check that the NHS organisations are complying with the requirements on the prevention and control of HCAIs. As the noble Earl will appreciate, The Parliamentary Under-Secretary of State, Ministry we take that issue seriously. We are not complacent; of Justice (Lord Bach): I shall refer to the regulations we are pleased that the numbers of MRSA and C. as the 2009 franchise regulations. They relate wholly difficile cases are down, but I agree that the situation to the European parliamentary elections to be held in will not be satisfactory until they have all gone. the United Kingdom on the 4 June this year and form The noble Earl raised the issue of how the CQC an important part of the Government’s preparations will act in assessing providers’ compliance and make for these elections. There was no requirement for us to decisions. It is doing so right now; it is making decisions consult with the Electoral Commission on this statutory on whether it will attach conditions to registration. I instrument but we did so. It was content with the imagine that the noble Baroness, Lady Young, has her necessary changes and had no substantial comments people hard at work on that right this minute. to make. On the issue of safeguarding, the enforcement powers These regulations amend the European Parliamentary will remain those under the Care Standards Act until Elections (Franchise of Relevant Citizens of the Union) providers are transferred to the new registration system Regulations 2001, which provide for the registration of under the 2008 Act. On the powers to close down relevant citizens of the EU who are resident in the healthcare facilities and wards, that is one of the range United Kingdom as European parliamentary electors. of interventional powers. The commission will need to The 2001 franchise regulations gave effect to the consider the risk to patients and others using services requirements of a European Council directive concerning of stopping a service against leaving a substandard the arrangements in respect of the right to vote in service open, and it can do that only by liaising with elections to the European Parliament for citizens of the relevant PCTs and authorities. That is what we the Union living in a member state of which they would expect it to do. are not nationals. These regulations amend the 2001 As I recall, the issue of what would happen to the regulations to incorporate recent changes that have fines was raised several times during the passage of the been made to the system of registration of Bill. Where fines and penalties are incurred by NHS parliamentary and local government electors following bodies as a result of a breach of safety requirements, the implementation of provisions inserted into the we are working with HM Treasury to find a sensible Representation of the People Act 1983 by the Electoral way of returning the money collected to the local area Administration Act 2006. The amendments ensure where it can be reinvested into improving services. consistency between the registration systems for GC 311 European Parliamentary Elections Regs.[LORDS] European Parliamentary Elections Regs. GC 312

[LORD BACH] running and proper conduct of the European parliamentary and local government elections and parliamentary elections. I commend this draft statutory European parliamentary elections, and ensure that instrument to the Committee. relevant citizens of the Union are afforded the same protections as other voters. Lord Henley: I thank the Minister for introducing In summary, the amendments will apply new provisions these regulations and for speaking to the other two on late registration, new provisions on anonymous orders. I offer him my commiserations for his voice, registration in England, Wales and Scotland, and changes which sounds as though it is beginning to go. I do not to the procedure for determining applications for and know whether he needs a rest. Perhaps the whole objections to registrations. Government need a rest. Looking at the picture of Daniel in Babylon, one can see the writing on the wall. First, as noble Lords will recall, late registration Possibly that is not a very good joke, but there it is. I came into force on 1 January 2007 and allows eligible offer my commiserations to the noble Lord for his electors to register up to 11 days before a poll, whereas health and I hope that his voice will get better in due previously the period was between six and eight weeks. course. The Government want this power extended to include As my noble friend Mrs Laing made clear in the relevant citizens of the Union who vote at European Commons, we support these regulations in principle. parliamentary elections so that registration officers We all want to do what we can to improve the electoral apply late registration rules consistently in respect of system and to ensure the absolute integrity of the all elections, particularly as they are being combined ballot box. All three parties must admit that we have on 4 June. had problems at the ballot box over the past few years Secondly, anonymous registration came into force and, recalling the newspaper reports that we have read on 1 June 2007 and allows for eligible persons to about that, all three parties have suffered from a register to vote without their names and addresses number of colleagues who treated matters in a manner appearing on the electoral register. Its aim is to protect that they should not have done. We hope that the vulnerable people in society whose safety may be at appropriate ones have all been caught and dealt with risk if their details were to be made public. The by the courts in due course. It is very important that amendment we are bringing forward in this statutory we get this right. instrument will allow relevant citizens of the Union While on the subject, perhaps I may refer to individual who apply to register in the European parliamentary voter registration. Although this goes wide of the elections to apply to register under an anonymous regulations, the issue was raised by the Government entry. Noble Lords may be pleased to hear that where towards the end of the Political Parties and Elections relevant citizens of the Union already have an anonymous Bill in the Commons last night. Obviously that Bill entry on the local government electoral register, the will come to us in a couple of weeks’ time—I forget on amendment will automatically grant that person an which day Second Reading will take place—and it anonymous entry for the European parliamentary would therefore be useful if the Minister could expand elections. In fact, the use of anonymous entries on the on what the Government said last night about what register has been very low indeed, involving some 500 they are proposing to do about individual voter out of about 40 million voters so far. There is, indeed, registration. I welcome the fact that they say they can a hard test to get on to that list. bring it forward but—this is where I suspect that both Thirdly, on determinations and objections, a number we and the Liberal Democrat Party will feel slightly of changes have been made to the procedure for suspicious—they have implied that they cannot bring registration officers to determine applications and it through until something like 2015 or 2016. One objections to applications. For example, objections to suspects that the Government could bring it forward a a person’s registration can now be made both before bit quicker if they really wanted to. We wait to hear and after that person’s registration. The amendments what the Minister can say about that. I hope he will to the 2001 franchise regulations will ensure consistency give an assurance that they can bring it forward earlier. so that, as far as possible, the same procedures apply If they cannot, I have a sneaking suspicion that when to determinations in relation to registration by relevant the Political Parties and Elections Bill goes through citizens of the Union as for registration for parliamentary this House, my party and one or two others might and local elections. want to bring forward some amendments that might There is a minor amendment to Regulation 8 of the hasten the introduction of individual data registration. 2001 regulations so that upon registering a relevant We will listen very carefully to what the Minister has citizen of the Union in the European parliamentary to say. electoral register, the registration officer himself or My second point concerns data sharing. As the herself will no longer be required to send a copy of the noble Lord will know, my honourable friend Mrs application and declaration to the representative of Laing raised the question of data sharing again when the state in respect of which the applicant is a national. these regulations went through the other place. She is Instead, the registration officer will have to send only very concerned about that subject and has raised it on the information contained within the application and a number of occasions. Mr Wills, speaking for the declaration. This complies with the EU directive and Government, said in response to her: removes a potential burden for administrators. “On many occasions, I have heard the hon. Lady refer to the perils of data sharing—she has done so again today—but I have I am sorry that I have gone through the details but, never heard her explain the advantages and benefits that it in their minor way, these are important regulations. brings”.—[Official Report, Commons, Third Delegated Legislation The point behind them is to ensure the successful Committee, 25/2/09; col. 12.] GC 313 European Parliamentary Elections Regs.[4 MARCH 2009] European Parliamentary Elections Regs. GC 314

Oh dear. If the Government cannot see what the Oaten raised the issue of just how many people are potential problems of data sharing within government currently applying for anonymous registration. The are, they have a great deal to learn. We have problems Minister has been kind enough to tell us that he thinks with data sharing in these orders—they crop up again it is about 500. and again in a number of measures—and if the I have a supplementary question. Five hundred is a Government cannot see what the problem is, they will small number, which implies to me that perhaps the have to pull their socks up and move in some way. I process is too rigorous. I can think of a lot of people await the Minister’s response, particularly on individual who legitimately should be asking for anonymous data registration. listing. Maybe it is a problem of publication or there is not sufficient publicity about the way that this could 4.15 pm happen, but the regulations before us, and the existing Lord Tyler: Before I speak to these regulations, I regime for those who are already eligible for anonymous should indicate a non-pecuniary interest: I have sat on listing, is a tortuous process. It is quite discouraging to an informal advisory committee of Peers and MPs at those who may have a legitimate request to be listed the Electoral Commission. Although I do not purport anonymously on the register. I hope that the Minister to represent the views of the commission, I have been may be able to tell us whether he thinks that the involved in some of the discussions on some of the present regime is over-rigorous and is therefore issues with which the Committee is concerned this discouraging people who have a legitimate reason for afternoon. I, too, look forward with considerable interest wanting this protection of their personal circumstances. to what the Minister will be able to tell us about Apart from those quick questions, I do not have individual registration. The Electoral Commission has any other concerns. My noble friends in this House been very forthright about this issue—it has not always feel, as do my honourable friends in the other place, been as forthright on others. that this is a useful bit of tidying up, and we thank the The Minister may recall that earlier in this Session I Minister for bringing it forward. raised this issue on the Floor of the House. There is clearly a considerable loophole in the present law on Lord Bach: I thank both noble Lords for their registration in that we still have household registration support for the regulations. I will be moving the second which is, I fear, open to a great deal of sometimes and third orders in due course, and I have been advised inadvertent, but sometimes carefully planned, corruption. that I have to speak to both of them. That will happen That is extremely unfortunate because it gives a bad in a minute or two. impression of what is otherwise a very good system, of The noble Lord, Lord Tyler, asked about anonymous which we should be very proud. registration. We think that the system is working fairly There was, as the noble Lord said, some reference well and that people are not being discouraged. It is to this issue in the other place earlier this week. I hope important that there is quite a high hurdle to get over. that the Minister will take this opportunity to spell out The order itself means that it does not have to be a exactly what is intended. It would be very helpful, in police chief constable but a police superintendent, so preparation for the Political Parties and Elections Bill it could be done in the local police station if anonymity coming to this House, if we had a clear idea of what is necessary. The figures were 310 on 1 December 2007 was intended. If, as I read, the timescale is as leisurely and 551 on 1 December 2008. I am grateful for the as the noble Lord has just indicated, that is extremely noble Lord’s support for this new development in the unfortunate. After all, this issue has been around a field of registration. He is right that we want to keep long time; there must have been plenty of time to registration as simple as possible. think through the practical implications. There is a On the broader question of individual representation, false dilemma between trying to make sure that the I had a feeling that my right honourable friend’s register is as comprehensive as possible and discouraging intervention in the final stages of the Political Parties illegal registration. The integrity of the register must and Elections Bill in another place on Monday night surely be far more important than its simple quantity. might attract some comment today; if I had not Simply because a register has a lot of people on it does anticipated that, I should have done. If noble Lords not necessarily mean that it is very effective or legitimate. will forgive me, I do not think we should indulge in a I hope that the Minister will say something about that. long session on that; we will have plenty of time to On the regulations, I believe that the Government talk about it. I trust that both noble Lords, given their are absolutely right to try to achieve greater consistency parties’ positions, welcome what was clearly an important while at the same time ensuring that that consistency is Statement by the relevant Minister about this important on as simple a basis as possible. The integrity of the matter. register relies on relative simplicity.If it gets extraordinarily At Report in another place my right honourable complicated, we have a problem. In that respect it is friend set out a clear timetable for moving towards right that we should go for individual registration, but individual electoral registration. That will initially involve in so doing we should not try to build in too much a voluntary scheme running alongside the household complexity because that will undermine the effective scheme from 2010 to 2015. Before and during that registration of our fellow citizens and therefore the period, major steps will be taken to continue to build integrity of the register. on the comprehensiveness and accuracy of the electoral In that regard, will the Minister say a little more register to ensure that the public and the system are about the issue of anonymous listing? I notice that on ready for the change. These measures will involve 25 February in the Third Delegated Legislation Committee some amendments to the Bill in Committee in this in the other place my honourable friend Mr Mark House. I promise both noble Lords that we will share GC 315 European Parliamentary Elections Regs.[LORDS] Representation of the People Regs. 2009 GC 316

[LORD BACH] changes and, in relation to anonymous registration, with them as quickly as we can the proposals we has stated that it will ensure that vulnerable people intend to put in the Bill regarding these matters, and I will have better and more consistent access to the hope that we can discuss them before the Bill goes into attestation process, while ensuring that the evidence Committee. The draft clauses may not be ready for a required in support of applications remains sufficiently little while so I invite both noble Lords to be patient, stringent. What I have to say may be part of an answer but, as I say, we will certainly have a chance to talk to what was said by the noble Lord, Lord Tyler, in the about them before we go into Committee. I hope that previous debate. the two noble Lords present today will be dealing with These regulations amend the Representation of the the Bill at the appropriate time. People (England and Wales) Regulations 2001 and the I think that I expected a little more enthusiasm for Representation of the People (Scotland) Regulations the important move the Government have made this 2001. In summary, they will make minor yet important week. That is all I intend to say about individual changes in respect of applications for anonymous entries registration, which has precisely nothing to do with in the electoral register; make modifications to provisions the important statutory instrument we are debating relating to the registration of overseas Peers for European today. parliamentary elections, primarily to ensure consistency On data sharing, perhaps I may say to the noble with other changes in electoral legislation; and thirdly, Lord, Lord Henley, that once again it was a good try, as I mentioned earlier, make provision for a free copy but I do not think this is an issue that affects us today. of the electoral register to be supplied to the Statistics We have introduced safeguards in the Political Parties Board, which now carries out the statistical functions and Elections Bill to ensure that the Information of the Office for National Statistics. Commissioner is consulted before any orders are made to enable data matching to improve the electoral register. 4.30 pm The proposals for data matching largely mirror the As mentioned earlier, the anonymous registration scheme already in place in Northern Ireland. The of electors came into force nearly two years ago. noble Lord’s honourable friend in another place, Applications for anonymous registration have to be Mrs Laing, brought up this issue around the accompanied by evidence in the form of, first, an Representation of the People (Amendment) Regulations attestation by a qualifying officer confirming that the 2009 which we will come to in a moment, but all I will safety of the applicant or another person in the applicant’s say is that they make provision for the Statistics Board household would be at risk if the register contained to receive the register and do not change substantively the applicant’s name or address; or, secondly, that the provisions on data sharing. It is a consequential there is a relevant court order or injunction as listed in change following the transfer of the statistical functions the regulations. of the Office for National Statistics to the Statistics The amendments in these regulations make changes Board. in respect of who constitutes a qualifying officer and We have had an enjoyable ride around the issues the types of court orders and injunctions that may be today. used in evidence to support an application. First, in respect of qualifying officers, we are making changes Motion agreed. to the level of police officer able to attest applications. At the moment, only a chief officer or chief constable Representation of the People (Amendment) can do so, which means that all applications presented at a police station have to be transmitted to headquarters Regulations 2009 for signing. This statutory instrument allows police Considered in Grand Committee officers of the rank of superintendent and above to attest applications. This means that applicants will, in 4.27pm most circumstances, be able to have the attestation Moved By Lord Bach undertaken at their local police station. Secondly, the statutory instrument makes minor That the Grand Committee do report to the House amendments to provide that an attestation signed by that it has considered the Representation of the People any director of adult social services or truant services (Amendment) Regulations 2009. in England or the equivalent in Wales can be submitted Relevant Document: 5th Report from the Joint in support of an application in either England or Committee on Statutory Instruments. Wales. The amendments also include any chief social work officer in Scotland within the meaning of qualifying The Parliamentary Under-Secretary of State, Ministry officer. Therefore, in these respects, the amendments of Justice (Lord Bach): These regulations, which from make the 2001 England and Wales regulations consistent now on I will refer to as the Representation of the with the current 2001 Scotland regulations. People Regulations 2009, have a link to the European This statutory instrument also amends the 2001 parliamentary elections this year in respect of the England and Wales and 2001 Scotland regulations to registration of overseas Peers, but also include separate include within the meaning of qualifying officer any provisions relating to anonymous registration for eligible director of social services of a Northern Ireland health electors in any relevant election. and social services board, and any executive director This statutory instrument has been subject to of social work of a Northern Ireland health and social consultation with the Electoral Commission. The services trust, as these office holders were previously commission has advised us that it supports all of these not included. GC 317 Representation of the People Regs. 2009[4 MARCH 2009] Parliamentary Constituencies Order 2009 GC 318

Finally, the draft SI amends the list of court orders that we were debating all three statutory instruments and injunctions that may be presented as evidence in together. That is why I made my remarks about data support of an application for anonymous registration sharing, which are possibly more appropriate to these to include those made under relevant Northern Ireland regulations than to the preceding ones. I have nothing legislation. This will ensure that no matter where a further to add other than that I am interested in his specified order or injunction is granted in the UK, it estimates of the number of Peers who might be affected can be submitted in support of an application for by this measure. I think he said originally that four anonymous registration. Peers might be affected, and then suggested that the Turning to other amendments within the Representation figure was coming down to a much smaller one. I of the People regulations, the Representation of the remember that a Secretary of State in the Department People Act 1985 enables Peers who are resident overseas for Education for whom I worked said that she thought to vote at European parliamentary elections. The current three exam boards were too many and that one was too regulations apply with modifications to certain legislative few. However, she was not prepared to speculate on provisions for the purpose of registration of this category what she considered was the right figure. I wonder of elector. There are not many of them. As part of our whether the noble Lord will speculate on what the preparation work for the European parliamentary elections appropriate figure—if it is much smaller than four—is this year,we identified the need to update these regulations, likely to be. He probably cannot answer that question primarily to reflect recent changes to the system of and I do not particularly expect one. However, if he registration for parliamentary and local government can, I will listen to it with interest. electors. In particular, the effect of an amendment to Lord Tyler: I will speak briefly as I hope to preserve the Representation of the People Act 1985 made by the the Minister’s voice for the final order, which I regard Electoral Administration Act 2006 is that an oversees as rather more important. I do not think this House Peer who has an anonymous entry in the register of could ever be accused of not looking after the interests local government elections will not be able to satisfy of minorities. If we are seeking to preserve the interests the conditions of entitlement to vote at European of four Peers who are resident in the European Union parliamentary elections. Consistent with this, the draft for this electoral purpose, we really are looking at the SI amends the current regulations to reflect that anonymous minority of minorities. Unless, of course, the Minister registration does not apply to overseas Peers for the anticipates a large flow of Peers disappearing from purpose of European parliamentary elections. this House and this country for economic or legislative Minor amendments are also made to ensure that reasons. If we are seeking to preserve the rights of one the legislative framework for the registration of overseas Peer, who presumably may have triggered this whole Peers is workable and internally consistent. We understand exercise by seeking to preserve the anonymity of his or that the number of Peers likely to be affected by these her registration, that seems to me a great accolade that amendments is very small. The ONS registration figures we should celebrate in this Parliament; namely, that for 2008 reveal that only four Peers were registered as we are prepared to look after the interests of one Peer. European parliamentary overseas electors. I do not If that is the case, perhaps the Minister may like to know whether any of those have applied to be anonymous comment on it. Having made that point, this is obviously on the register but they could only have been so since 1 just a simple tidying-up operation and I hope that we June 2007. Their entitlement to vote was conditional will not have to ask the Minister to use his voice at on their having been on a register in the United great length to explain the origin of this change. Kingdom in the course of the past 15 years, so I think that four probably comes down to a much smaller Lord Bach: I thank both noble Lords for their firm number. support for this statutory instrument. I really do not want to go into the details. I am afraid that we are not Finally, as regards the Office for National Statistics, preserving the right of any Peer; to make the law we are making a minor amendment to the 2001 England consistent we are saying that a Peer who found himself and Wales regulations and the 2001 Scotland regulations in the extremely unlikely position of having been on to provide for a free copy of the electoral register to be the anonymous list for local elections from 1 June supplied to the Statistics Board. The regulations currently 2007 would not have the right to vote in European provide for a free copy of the register to be supplied to parliamentary elections. The noble Lord tempts me to the Office for National Statistics. However, as the give a figure of less than four. I will: nought. office’s statistical functions are now carried out by the Statistics Board, it is appropriate that the board should Motion agreed. receive the register instead. I thank noble Lords for allowing me the time to go Parliamentary Constituencies (England) into perhaps a little too much detail on this statutory (Amendment) Order 2009 instrument, but it is important that these matters are Considered in Grand Committee on the record. I thank the noble Lord, Lord Henley, for the very kind remarks he made about my voice in 4.40 pm the earlier debate. However, I warn him not to be too Moved By Lord Bach overconfident or to think that my voice, odd though it may sound at the moment, presages anything other That the Grand Committee do report to the House than triumph whenever the general election comes. that it has considered the Parliamentary Constituencies (England) (Amendment) Order 2009. Lord Henley: I admire the noble Lord’s resilience in Relevant Document: 6th Report from the Joint these matters. I offer an apology in that I had assumed Committee on Statutory Instruments. GC 319 Parliamentary Constituencies Order 2009[LORDS] Parliamentary Constituencies Order 2009 GC 320

The Parliamentary Under-Secretary of State, Ministry had submitted its previous periodical report to the of Justice (Lord Bach): The purpose of this draft Secretary of State, the boundary changes were not order is to implement without modification the reflected in the 2007 order. As a result, the boundaries recommendations of the Boundary Commission for between the parliamentary constituencies of Daventry England to make alterations to the boundaries between and South Northamptonshire, and those between the parliamentary constituencies of Daventry and South Somerton and Frome, and Wells do not follow the new Northamptonshire in Northamptonshire; and Somerton local authority ward boundaries. and Frome, and Wells in Somerset. I hope that the The Boundary Commission for England, therefore, Committee will consider that this is an uncontroversial considered whether it should carry out another interim draft order, but I have a feeling that my hope may not review of the relevant areas and other areas in a be realised completely. similar situation. It concluded that it should carry out The Boundary Commission for England has observed a review, but decided to postpone its reviews of the its customary rigorous and non-partisan procedures other areas because of local government reorganisations. in producing its report, including wide consultation. No doubt the commission will return to those areas in Although there has been some opposition to the proposals due course. in Somerset, everyone concerned has had an opportunity to put their arguments, which have, I understand, been 4.45 pm carefully considered by the commission. The commission began the process in the usual way, I appreciate that there may be some interest from announcing the commencement of the review in June those affected—the electors concerned as well as Members 2007, collecting data and considering the evidence. It of this Committee and of the other place who represent produced provisional recommendations in July 2007, these areas. However, I hope we can all agree that the published them widely and invited representations commission has, as usual, done its work very thoroughly from interested parties. It made the recommendations and that we can approve this draft order. available for inspection locally and on its website. The I shall provide some background to the commission’s provisional recommendations propose that only the report and the order. Thanks are due to the Boundary minimum changes necessary should be made to bring Commission for England and its secretariat for its the boundaries between the parliamentary constituencies assiduous work in carrying out this review. As always, of Daventry and South Northamptonshire and those it has carried out its duties thoroughly and conscientiously. of Somerton and Frome, and Wells back into alignment I take this opportunity to thank the deputy chair of with the new local authority ward boundaries. That the commission at the time, the honourable Mr Justice will involve a relatively small change on the map and Sullivan, for overseeing this work. He is no longer the relatively few electors. deputy chair, having been elevated to the Court of Sixteen written representations were received in Appeal, so he is now Lord Justice Sullivan. I am respect of proposals for the Northamptonshire grateful, as I am sure are all Members, for his work constituencies, of which 13 were objections; and five with the commission over many years. in respect of the Somerset constituencies, of which four were objections. The commission therefore decided The Boundary Commission is a body appointed by to hold local public inquiries in both areas to allow statute to review parliamentary constituency boundaries those making representations, and others, an opportunity in England. As well as carrying out regular reviews on to make their case in person. all parliamentary constituencies approximately every As a result of those public inquiries, the commission 10 years or so, if it thinks it necessary between those made revised proposals in both areas. Further written reviews, the commission can carry out interim reviews representations were received in respect of both areas, of boundaries in a particular area. These might be but after considering those and all the other evidence, necessary as a result of other changes, for instance to I understand that the commission decided to make no local authority boundaries or perhaps if there are further changes to its proposals. It made its report to major population changes in an area. The report and the Secretary of State on 25 July 2008. The Secretary the draft order are the result of local authority boundary of State is required by statute to lay the commission’s changes. report before Parliament, along with the draft order The previous regular periodical review in England implementing the recommendations, was completed by the commission in October 2006. Its “as soon as may be”, report was implemented without modification in the after receiving the report. After arranging for publication Parliamentary Constituencies (England) Order 2007, of the report and preparing to seek legal approval which sets out the parliamentary constituencies into of the instrument implementing the report’s which England is divided. The parliamentary recommendations, the report and the draft order were constituencies are described by reference to local laid in January this year. government areas as they existed on 12 April 2005 The draft order is uncomplicated and, as I said, and, of course, the new parliamentary constituencies includes without modification the recommendations will come into effect at the next general election. contained in the Boundary Commission’s report by After the commission’s report was submitted, the amending the 2007 order to realign the parliamentary Electoral Commission made orders in 2006 and 2007 constituency boundaries with the altered ward boundaries. which altered the local government ward boundaries That means that the parliamentary constituencies will in the district of South Northamptonshire and in the reflect the new local authority ward boundaries introduced district of Mendip in Somerset. Because those orders in the Electoral Commission orders made in 2006 came into effect some months after the commission and 2007. GC 321 Parliamentary Constituencies Order 2009[4 MARCH 2009] Parliamentary Constituencies Order 2009 GC 322

If the House should see fit to approve the draft I think that we are owed a better explanation of order and those in the other place do the same, it will why the Boundary Commission exercise decided to be submitted in the normal way to the Privy Council review proposals that had already attracted quite a lot for approval before it comes into force. I remind the of public support. The Minister has said that only five Committee that should the draft order be approved, it representations were made, but four of those were in will have no practical effect until the next general opposition to the changes. It is clearly the case, as I parliamentary election. Any parliamentary by-elections know from contacts in Somerset, that many people that may occur in the areas affected before then will of thought that the original proposals would go through course take place on the existing boundaries. and were not aware of the second phase of consultation. I trust that that explains in sufficient depth what the Even more substantially in this building, I also understand order is about and why the draft order should be that neither of the constituency Members of approved. Parliament—Conservative and Liberal Democrat—feels that the consultation for the second stage of this Lord Henley: I was not going to speak to the orders, exercise was anything like as adequate as for the first. but I think I should, purely to declare a very obscure The Minister may now be able to explain why this interest. I do not know whether it is declarable or not. particular order has come to this House first. That is With regard to the first two constituencies concerned, curious since it deals with parliamentary constituencies, Daventry and South Northamptonshire, the peerage which are of very considerable interest to Members of under which I sit in this House is different from the the other place. Indeed, I do not think that hitherto one under which I call myself. I sit under a United there has been a formal occasion for Members of the Kingdom peerage, which is Lord Henley of Watford other place to express anxieties on this score. in the county of Northamptonshire. I think that the Watford in the county of Northamptonshire is in one Having appeared before the Boundary Commission of the wards mentioned in the district of Daventry. in the past, I have to say that its inquiries are usually Therefore, I ought to declare my interest there. Other meticulous. Up to this point, I have not heard of than that, I have nothing to say. another example where it has gone back and, as it were, started the exercise again, having been triggered Lord Tyler: I certainly do not have such a distinguished by a simple change to second-tier ward boundaries. interest as the noble Lord, Lord Henley, but I have an That seems to be unusual as well. I find the whole interest in knowing quite a bit about a part of the process very extraordinary and I hope that the Minister country to which the order refers: Somerset, which will take note that I and my noble friends, when the contains both the Somerton and Frome and the Wells report is made to the House, will seek the withdrawal constituencies. Having, I confess, been fully briefed of this order and a review. We do not believe that it only today, I am alarmed to the extent that I believe meets the normal criteria that the Boundary Commission that the Boundary Commission for England may have follows for England. Although it has a very good misdirected itself with regard to the changes to those reputation, I fear that on this occasion, it has not met two constituency boundaries. I must substantiate that the expectations we all have of it. by trying to explain why I have expressed that very serious concern. Lord Bach: I thank both noble Lords for their As I understand it, a substantial review with contributions. I do not think that the noble Lord, considerable and comprehensive consultation was Lord Henley, need worry too much about a conflict of undertaken in the constituencies concerned. But, as interest; indeed, I can reassure him on that. has been implied by the Minister, before it was completed I also thank the noble Lord, Lord Tyler, for setting and the process brought to fruition, changes were out so clearly his objections to part of the order. made to the district council ward boundaries. It was at However, the Government’s view is that this is very that point that the commission decided that it should much a matter for the Boundary Commission itself. review the proposals that it had already consulted Having considered it and having also held a public upon. I understand that no complaint had been made inquiry, when I understand a minor change was made, in either constituency by either of the Members, who the commission came to a view, and it is that view are representatives of the two opposition parties, about which makes up this draft order. As the noble Lord the earlier process of consultation. The concern arose generously conceded, the commission went through about the then change in the recommendations that its normal procedures and the inquiries were conducted resulted from the changes made to the Mendip district properly. The recommendations following the wards. I emphasise that it was simply the district wards commission’s inquiries were accepted and we do not that were changed, not the county wards, and I am see it as our role in government to second-guess on sure that the noble Lord, Lord Henley, who knows a matters of this kind. If we were to do so, it would lot about county politics, will agree that county wards represent a fairly dangerous precedent in terms of are a great deal more significant when it comes to the government power. The noble Lord will understand identification of communities and the rural areas that why I say that. I regret that he will take this matter have a relationship with local towns. It is true that further, but he is of course entitled to do so. although the changes are not that dramatic, as a result of the recommended redistribution, some very interesting divisions have arisen in the rural areas that form part Motion agreed. of the catchment areas, if you like, of some of the small towns of Somerset. Committee adjourned at 4.56 pm.

WS 53 Written Statements[4 MARCH 2009] Written Statements WS 54

stress that we must not forget the aim of moving to Written Statements a low-carbon economy, and EIB funds must be Wednesday 4 March 2009 there to support all parts of the automotive industry to lower carbon emissions; and explore with other member states what more the Armed Forces: Aircraft EU can do to stabilise financial markets, stimulate Statement our economies and enable families, workers and businesses to get through the downturn and on track for a sustainable path to recovery and growth. The Parliamentary Under-Secretary of State, Ministry The morning and lunch sessions will cover: of Defence (Baroness Taylor of Bolton): My honourable friend the Parliamentary Under-Secretary of State for exchange of views and adoption of council Defence (Quentin Davies) has made the following conclusions on follow-up to the single market Written Ministerial Statement. review; and I am pleased to announce that the Ministry of a debate on the Lisbon strategy and the Lisbon Defence has signed a five-year contract with BAE policy exercise 2009—key issues paper of the Systems, worth around £450 million, for the provision Competitiveness Council to the spring European of an availability support service to the Typhoon fleet Council with the aim of final adoption of paper. of aircraft. Lunchtime discussion on economic crisis and recovery This innovative partnering arrangement will create Discussion points for the lunch have not been finalised up to 150 highly skilled new jobs, mostly at RAF and may be subject to change before 5 March but we Coningsby, and sustain a further 350 at its peak. The understand that possible issues for discussion will Typhoon programme directly employs some 16,000 include: aerospace and engineering staff at various locations further discussion on the Commission’s economic across the UK and many more throughout the supply recovery package; chain. This new contract adds to and sustains this car industry access to framework programme 7 number. The programme is very important to the UK funding; and from both the military and industrial perspective. role/use of EIB funding. This contract will see BAE Systems taking a major The afternoon session will cover: role in ensuring the availability of the Typhoon fleet to meet its standing and operational commitments and an exchange of views with the aim of adopting demonstrates the Ministry of Defence’s commitment council conclusions on crisis in the automotive to partnering with British industry to get more efficient industry; and support for our front-line Typhoon fighter force. a progress report on better regulation. Any Other Business In addition to the main council items, there will be EU: Competitiveness Council eight further items taken under Any Other Business, Statement all of which fall under BERR’s responsibilities: information from the presidency and Commission on forum on services and trade liberalisation The Minister of State, Department for Business, (Prague, 2 and 3 February 2009); Enterprise and Regulatory Reform & Foreign and Commission update on services directive and state Commonwealth Office (Lord Davies of Abersoch): My of play of implementation process; honourable friend the Economic and Business Minister, Department for Business, Enterprise and Regulatory presentation by the Commission on internal Reform (Ian Pearson) has made the following Statement. market scoreboard no 18; On 5 March I shall be representing the UK at the Commission presentation on communication from EU Competitiveness Council. the Commission to the European Parliament, the There will be five main items being discussed and Council, the European Economic and Social debated at the council (as listed below), of which the Committee and the Committee of the Regions: two most high-profile issues to be discussed will be the monitoring consumer outcomes in the single market— crisis in the automotive industry and EU economic second edition of the consumer markets scoreboard; crisis/recovery plan, which will be discussed by Ministers information from the presidency on five years after over lunch. Prague: impact of enlargement in the European Government aims for council economies; Throughout these sessions the Government’s aim information from the Commission on Transatlantic will be to: Economic Council; emphasise that a fully functioning open and presentation by the Commission communication liberalised single market can be an aid to economic on the external dimension of the Lisbon strategy recovery rather than detrimental; for growth and jobs: reporting on market access highlight the need to avoid creating barriers and and setting the framework for more effective distortions in responses to the downturn and the international regulatory co-operation; and need to avoid undermining the internal market, Commission overview of implementation of the and avoid protectionist measures in the car sector SBA action plan at a Community and member and more generally; state level. WS 55 Written Statements[LORDS] Written Statements WS 56

Further Education: Capital Investment needed for them to proceed. A further 65 colleges have submitted bids to the national LSC for approval in Statement principle with an assumed funding contribution from government of a further £3 billion. The Parliamentary Under-Secretary of State, As a consequence, there are many more schemes Department for Innovation, Universities and Skills (Lord currently in preparation than can be funded in this Young of Norwood Green): My right honourable friend spending round. For that reason, I agreed with the the Secretary of State for Innovation, Universities and council that it would appoint an independent reviewer, Skills (John Denham) has made the following Written Sir Andrew Foster, to find out how this situation arose Ministerial Statement. and what lessons must be learnt for the future. It is In 1997 there was no capital budget for further clear that even at current record levels of funding not education (FE) colleges and the National Audit Office all schemes can be implemented on the timescales (NAO) described FE college buildings as “ageing and originally envisaged. I have therefore asked the council their quality and fitness for purpose was often to consult with the Association of Colleges and the unsatisfactory, affecting the reputation of the sector”. FE sector to advise me on ways of prioritising schemes in the future programme. Between 1997-98 and 2006-07, more than £2 billion has been invested in modernising FE facilities. My I have asked the council to keep interested members department will spend another £2.3 billion in the informed on the progress and status of schemes in current spending review period. We have brought forward their area. £220 million of this funding, £110 million from 2009-10 to 2008-09 and a further £110 million from 2010-11 to 2009-10, as part of our response to boost the economy. Kosovo Nearly 700 projects in 330 colleges throughout England Statement have been agreed, and 253 schemes are under way or fully approved. Only 42 colleges have yet to receive any The Parliamentary Under-Secretary of State, Ministry investment. Last summer the NAO reported the of Defence (Baroness Taylor of Bolton): My right programme as making good progress with the renewal honourable friend the Secretary of State for Defence and modernisation of the FE estate, with the great (John Hutton) has made the following Written Ministerial majority of projects coming in on budget and delivering Statement. great improvement for learners. The Supreme Allied Commander Europe has decided I previously informed the House that the demand that the specific capability, currently provided by the for funding by colleges has risen. The size of projects UK to the NATO force in Kosovo, is no longer and the scale of government funding required have required. Our current force of 167 personnel will increased. In December, the Learning and Skills Council drawdown to a small number of posts between the end (LSC), which administers the programme, decided to of March 2009 and 1 September 2009. defer further approvals of projects in principle and in detail while assessing the programme overall. As I said Our drawdown reflects the changed circumstances in the House on 3 February, this decision did not in Kosovo, in particular the improved security situation. affect projects that have already received agreement in The key milestones in Kosovo’s independence have detail and are in progress and we anticipate spending passed without major incident and the security situation the full £2.3 billion allocated in this spending review in Kosovo is generally calm. The EU rule of law period. mission has recently rolled out across Kosovo. Against this backdrop, and with over 14,000 personnel still in Today the council met to discuss the results of its theatre, NATO remains well placed to deal with any assessment of the programme. It has decided to give potential security incidents. detailed approval to eight schemes at colleges in Stoke- on-Trent, Coulsdon (Surrey), West Kent, Liverpool, Solihull, Northampton and two in Bolton. Northern Ireland Office: Contingency These colleges had all been recommended for approval Fund by the national capital committee of the council and decisions to approve their applications in detail had Statement been deferred from the December meeting. The total cost of these schemes is nearly £400 million. Baroness Royall of Blaisdon: My right honourable The council will provide more than £300 million in friend the Secretary of State for Northern Ireland government funding over the next five years. Following (Shaun Woodward) has made the following Ministerial the council’s decision today, the LSC will be working Statement. with the colleges involved on the phasing and funding Subject to parliamentary approval, the Northern requirements of these projects and how they are now Ireland Office (NIO) will be taking a 2008-09 spring taken forward. Their benefits will be felt by students supplementary estimate. This will increase the NIO’s and their local communities for years to come. net cash requirement by £1,387,681,000 from However, the LSC has now completed its assessment £11,546,811,000 to £12,934,492,000. £1,285,000,000 of other colleges seeking approval in principle or of the increase relates to request for resources 2 in detail. I am informed that the council has already respect of the Northern Ireland Consolidated Fund. given 79 colleges the first stage of approval in principle. Given the estimated date of parliamentary approval Government funding of nearly £2.7 billion would be for 2008-09 spring supplementary estimates, the Northern WS 57 Written Statements[4 MARCH 2009] Written Statements WS 58

Ireland block requires an advance from the Contingencies Women: Economic Downturn Fund to meet urgent cash requirements in advance of Parliament’s approval for public expenditure commitments Statement that cannot be deferred. Parliamentary approval for additional resources of The Lord President of the Council (Baroness Royall £340,309,000 will be sought in a supplementary estimate of Blaisdon): My right honourable friend the Minister for the Northern Ireland Office. Pending that approval, for Women and Equality (Harriet Harman) has made urgent expenditure estimated at £340,309,000 will be the following Statement. met by repayable cash advances from the Contingencies Sunday 8 March marks International Women’s Day. Fund. This year the theme chosen for this event is women and the global economic downturn. To mark it, the Government are publishing today: Service Complaints Commissioner a booklet specially produced for women—Real Statement Help Now for Women—which sets out the wide range of practical support available to women, The Parliamentary Under-Secretary of State, Ministry including childcare, help with family finances, of Defence (Baroness Taylor of Bolton): My right developing skills and finding a job; and honourable friend the Secretary of State for Defence a short fact-sheet summarising the key findings of (John Hutton) has made the following Written Ministerial a report on quantitative and qualitative opinion Statement. polling work that my department carried out last I have placed in the Library of the House today a month on women’s attitude to the economic copy of the Service Complaints Commissioner’s first downturn. The results show clearly that women annual report on the fairness, effectiveness and efficiency have more, and wider-ranging, concerns than men of the service complaints system. about nearly every issue raised. The Government committed to the establishment I am placing copies of both these publications in of a Service Complaints Commissioner in their response the Vote Office. I have also placed copies of them; to the Deepcut review, which was published in June 2006. together with the main opinion polling report, in the Provisions had already been proposed in the Armed Libraries of both Houses. Copies will also be available Forces Bill then under consideration for an independent on the Government Equalities Office website— external reviewer who would examine the fairness and www.equalities.gov.uk. They are intended to inform a effectiveness of the service complaints system and number of events this week to mark International report annually to Ministers. However, in light of the Women’s Day, during which we will discuss the concerns Deepcut review, the reviewer was given a wider role in that women have about the effect of the downturn on relation to allegations of bullying, harassment and them and their families and the action that we are other improper behaviour. Recommendations made taking to provide real help now as well as real hope for by the HCDC in its duty of care report 2004-05 also the future. In particular: helped to shape the role of the commissioner and the later today, we will be meeting with leading complaints process. businesswomen and third sector organisations; and The role of the commissioner is to provide scrutiny tomorrow, there will be a full day’s debate in this and assurance that the complaints process is working House on the theme of supporting women and effectively and that lessons learnt are being implemented. families through the downturn and building a The commissioner offers an independent ear for the strong and fair economy for the future; a similar concerns of service personnel and their families and debate will also be held in the House of Lords on can pursue their proper consideration by the chain of Thursday 12 March. command. The commissioner’s work will help us to We are discussing with our international partners maintain a complaints system that is fair and effective how we can best work together this week and next in and where necessary improve it. I am confident that New York as part of the Commission on the Status of the commissioner provides the optimum arrangement Women. In Europe, the UK is co-chairing a working for both service personnel and the chain of command group of the European Commission Advisory Committee responsible for their welfare and discipline. on Equal Opportunities for Women and Men, and will I and the service chiefs are committed to the role of draft an opinion on gender perspectives on the response the commissioner and welcome this first annual report. to the economic and financial crisis. We are committed to continuously improving the service These events and debates take place in the context complaints process and take the commissioner’s of the national and international efforts to address the recommendations very seriously. I am pleased that the global financial crisis. The road to the London summit report states that the new complaints system is well points to the importance of “ensuring that the UK designed and is working; it also makes a number of workforce has the skills it will need to take advantage criticisms of current procedures, which we will need to of the opportunities of an increasingly globalised consider carefully. I will provide a formal response to world, through the education system and lifelong learning the commissioner once we have had time to look at the including support for part-time and flexible work for report in detail. men and women”.

WA 149 Written Answers[4 MARCH 2009] Written Answers WA 150

prosecution under Article 73 of the Air Navigation Written Answers Order 2005 if their lack of co-operation endangers the safety of aircraft using the airport. Wednesday 4 March 2009 Airport operators also have to be consulted during the planning process on all proposed developments in Apprenticeships their vicinity. They can oppose any developments which Question could increase the risk of bird strikes at their airports. Asked by Lord Low of Dalston British Association for Parenteral and To ask Her Majesty’s Government what completion Enteral Nutrition rate they expect for apprenticeships generally, and Question among disabled apprentices in particular. [HL1577] Asked by Earl Howe The Parliamentary Under-Secretary of State, Department for Innovation, Universities and Skills (Lord To ask Her Majesty’s Government what Young of Norwood Green): The grant letter from the consideration they have given to the report by the Secretaries of State for Children, Schools and Families, British Association for Parenteral and Enteral and for Innovation, Universities and Skills to the Nutrition, Combating malnutrition: recommendations Learning and Skills Council (LSC) outlines plans for for action. [HL1566] 118,000 successful apprenticeship completions in England in 2008-09 and 129,000 in 2009-10. The grant letter The Parliamentary Under-Secretary of State, also specified an overall apprenticeship completion Department of Health (Lord Darzi of Denham): The success rate target for 2008-09 of 65 per cent, subject department has a number of programmes which to factoring in the effects of the current economic contribute to the nutritional well-being of the population downturn. In 2007-08 113,000 people completed an including particularly vulnerable older people and apprenticeship in England and completion rates reached young children. Nutritional care is integral to our an all time high of 64 per cent. The 2007-08 completion action to tackle health inequalities and in programmes rate for apprentices with learning difficulties and/or such as Dignity in Care and Healthy Start and is also disabilities was 60 per cent. We will continue to work addressed in Healthy Lives, Brighter Futures—The to improve access to and successful completion of Strategy for Children and Young People’s Health, and apprenticeships and, going forward, will expect Healthy Weight, Healthy Lives: A Cross-government apprenticeship completion rates for people with learning Strategy for England. The department recognises that difficulties and/or disabilities to be no lower than for ensuring good nutrition is essential in front-line healthcare. non-disabled learners. The British Association for Parenteral and Enteral The Government are committed to ensuring that Nutrition’s recent report will contribute to this work. people who have learning difficulties or disabilities have full access to apprenticeship learning opportunities and to the specialist support and equipment they may British Coal Compensation need to complete their apprenticeships successfully. Questions We have put in place support systems, including for Asked by Lord Lofthouse of Pontefract the Connexions service to cater for people with learning difficulties and disabilities up to the age of 25, and To ask Her Majesty’s Government what was the through duties on the LSC to help young adults with total amount of costs paid in the British Coal learning difficulties and/or disabilities. We also provide respiratory disease litigation to the following firms extra funds to help make this happen. of solicitors representing the claimants: (a) Raleys, (b) Beresfords, (c) Thompsons, (d) Wake Smith, (e) Ashton Morton Slack, (f) Moss, and (g) Avalon. Aviation: Canada Geese [HL1133] Question Asked by Earl Attlee The Minister of State, Department of Energy and Climate Change & Department for Environment, Food To ask Her Majesty’s Government what powers and Rural Affairs (Lord Hunt of Kings Heath): The are available to the relevant authorities to require total amount paid to those firms representing claimants, landowners to control or reduce populations of as listed above, under the chronic obstructive pulmonary Canada geese when they could cause danger to disease is shown in the table below as at 22 February aviation. [HL1560] 2009.

The Minister of State, Department for Transport Claimants’ Representatives Total Costs (£ m) (Lord Adonis): Airport operators are required to have Raleys Solicitors 78.4 appropriate bird control measures in place. Where Beresfords Solicitors 130.9 such measures are required outside of the airport Thompsons 120.4 boundary they will have to be implemented with the Wake Smith 8.6 co-operation of the landowners concerned. Landowners Ashton Morton Slack LLP 13.3 who do not co-operate with the airport operator risk WA 151 Written Answers[LORDS] Written Answers WA 152

its programme to highlight the issue of deductions Claimants’ Representatives Total Costs (£ m) from coal health compensation which to date has Moss Solicitors 12.6 secured in excess of £3.6 million in refunds to claimants. Avalon Solicitors 40.4 Both DECC and the Ministry of Justice have welcomed the recent report by the legal services complaints Asked by Lord Lofthouse of Pontefract commissioner on the handling of coal health compensation claims. The report highlighted that overall To ask Her Majesty’s Government what was the the LCS had improved the way it handled miners’ total amount of costs paid in the British Coal complaints between February 2008 and 30 June 2008 vibration white finger litigation to the following and had taken note of the 11 issues raised in the firms of solicitors representing the claimants: (a) Raleys, LSCC’s earlier report of January 2008. (b) Beresfords, (c) Thompsons, (d) Wake Smith, (e) Ashton Morton Slack, (f) Moss, and (g) Avalon. Asked by Lord Lofthouse of Pontefract [HL1134] To ask Her Majesty’s Government how much in total was paid in costs to the claimants’ solicitors in Lord Hunt of Kings Heath: The total amount paid the British Coal respiratory disease litigation. to those firms representing claimants, as listed above, [HL1137] under the vibration white finger scheme is shown in the table below as at 22 February 2009. Lord Hunt of Kings Heath: The total costs for claimants’ solicitors’ handling claims under the chronic Claimants’ Representatives Total Costs (£ m) obstructive pulmonary disease scheme are £1 billion Raleys Solicitors 14.8 (includes Solicitors Co-ordinating Group, UDM and Beresfords Solicitors 7.9 Vendside Ltd) as at 31 January 2009. Thompsons Solicitors 31.4 Asked by Lord Lofthouse of Pontefract Wake Smith 0.3 Ashton Morton Slack LLP 2.9 To ask Her Majesty’s Government how much in Moss Solicitors 5.6 total was paid in costs to the claimants’ solicitors in Avalon Solicitors 0.1 the British Coal vibration white finger litigation. [HL1138] Asked by Lord Lofthouse of Pontefract To ask Her Majesty’s Government whether they Lord Hunt of Kings Heath: The total costs for plan to conduct an audit of solicitors’ costs in the claimants’ solicitors’ handling claims under the vibration British Coal respiratory disease litigation and British white finger scheme are £187 million (includes Solicitors Coal vibration white finger litigation, in the light of Co-ordinating Group, UDM and Vendside Ltd) as at the recent decision of the Solicitors Disciplinary 31 January 2009. Tribunal to strike from the roll of solicitors two Asked by Lord Lofthouse of Pontefract former senior partners of Beresfords solicitors LLP. [HL1136] To ask Her Majesty’s Government what was the amount of costs paid to Beresfords Solicitors LLP in (a) the British Coal respiratory disease litigation; Lord Hunt of Kings Heath: The department is not (b) the British Coal vibration white finger litigation; planning any such audit for claimants’ solicitors’ costs and (c) the British Coal industrial deafness litigation. under the coal health compensation schemes. Costs [HL1488] for handling claims under the schemes are paid in accordance with the claims handling agreements but the department is not privy to any further arrangement Lord Hunt of Kings Heath: The amount paid to between claimants and their representatives. Beresfords Solicitors for handling claims for chronic However, the department has welcomed the report obstructive pulmonary disease (COPD), vibration white by the National Audit Office published in July 2007 finger (VWF) and noise-induced hearing loss (NIHL) and the subsequent Public Accounts Committee is shown in the table below as at 8 February 2009. report examining the coal health compensation schemes. Type of Claim Total Beresfords Solicitors Costs (£ m) These are available to view at www.nao.org.uk/ publications/0607/coal_health_compensation.aspx and COPD 130.5 www.publications.parliament.uk/pa/cm200708/ VWF 7.91 cmselect/cmpubacc/350/350.pdf. NIHL 3.01 The Solicitors Disciplinary Tribunal hearing referred Asked by Lord Lofthouse of Pontefract to misconduct between the solicitors and their clients which is a separate issue. To ask Her Majesty’s Government what is the As the legal profession is independent and self- number of claimants in the British Coal respiratory regulating, complaints about solicitor misconduct are disease litigation awarded compensation of £3,000 a matter for the Legal Complaints Service and Solicitors or less, broken down between payments of (a) 1p to Regulatory Authority, rather than the Government. 50p; (b) 51p to £1, (c) £1.01 to £2; (d) £2.01 to £3; However, both DECC and the Ministry of Justice (e) £3.01 to £4; (f) £4.01 to £5; (g) £5.01 to £6; continue to support the Legal Complaints Service in (h) £6.01 to £7; (i) £7.01 to £8; (j) 8.01 to £9; WA 153 Written Answers[4 MARCH 2009] Written Answers WA 154

(k) £9.01 to £10; (l) £10.01 to £15; (m) £15.01 to Lord Hunt of Kings Heath: The number of claimants £20; (n) £20.01 to £30; (o) £30.01 to £50; (p) £50.01 under the vibration white finger scheme (VWF) who to £75; (q) £75.01 to £100; (r) £100.01 to £200; were awarded compensation of £3,000 or less, broken (s) £200.01 to £300; (t) £300.01 to £400; (u) £400.01 down by payments as requested above is shown in the to £500; (v) £500.01 to £750; (w) £750.01 to £1,000; table below as at 8 February 2009. (x) £1,000.01 to £1,500; (y) £1,500.01 to £2,000; The average costs paid to the claimants’ representatives (z) £2,000 to £3,000; and what is the average sum of for VWF claims is £1,402. costs paid to claimants’ solicitors for undertaking each scheme case. [HL1512] Total Damages VWF

lp to 50p 0 Lord Hunt of Kings Heath: The number of claimants 51p to £1 0 under the chronic obstructive pulmonary disease scheme (COPD) who were awarded compensation of £3,000 or £1.01 to £2 0 less, broken down by payments as requested above is £2.01 to £3 0 shown in the table below as at 8 February 2009. £3.01 to £4 0 £4.01 to £5 0 The average costs paid to the claimants’ representatives £5.01 to £6 0 in COPD claims is £2,242. £6.01 to £7 0 £7.01 to £8 0 Total Damages COPD £8.01 to £9 0 lp to 50p 2 £9.01 to £10 0 51pto£1 23 £10.01 to £15 0 £1.01 to £2 48 £15.01 to £20 0 £2.01 to £3 52 £20.01 to £30 0 £3.01 to £4 61 £30.01 to £50 0 £4.01 to £5 68 £50.01 to £75 1 £5.01 to £6 63 £75.01 to £100 5 £6.01 to £7 65 £100.01 to £200 27 £7.01 to £8 73 £200.01 to £300 56 £8.01 to £9 64 £300.01 to £400 191 £9.01 to £10 79 £400.01 to £500 199 £10.01 to £15 369 £500.01 to £750 3,231 £15.01 to £20 404 £750.01 to £1000 280 £20.01 to £30 919 £1000.01 to £1500 1,425 £30.01 to £50 1,854 £1500.01 to £2000 903 £50.01 to £75 2,292 £2000.01 to £3000 5,881 £75.01 to £100 2,173 £100.01 to £200 8,770 Asked by Lord Lofthouse of Pontefract £200.01 to £300 8,972 To ask Her Majesty’s Government what is the £300.01 to £400 9,259 average sum in compensation awarded in the British £400.01 to £500 9,094 Coal respiratory disease litigation to claimants £500.01 to £750 20,728 represented by (a) Beresfords Solicitors LLP; (b) Wake £750.01 to £1000 17,847 Smith; (c) Ashton Morton Slack LLP; (d) Moss £1000.01 to £1500 148,098 Solicitors LLP; (e) Corries York; (f) Browell Smith; £1500.01 to £2000 45,055 (g) Mark Gilbert Morse; (h) Avalon Solicitors; £2000.01 to £3000 33,127 (i) BRM Solicitors; (j) Atteys; (k) Simpson Millar; (l) Oxley & Coward; (m) The Union of Democratic Asked by Lord Lofthouse of Pontefract Mineworkers and its claims company, Vendside To ask Her Majesty’s Government to ask Her Limited; (n) Gorman Hamilton; (o) Delta Legal; Majesty’s Government what is the number of claimants (p) TLW Solicitors; and (q) Barber & Co. [HL1514] in the British Coal vibration white finger litigation awarded compensation of £3,000 or less, broken down between payments of (a) 1p to 50p; (b) 51p to Lord Hunt of Kings Heath: The average compensation £1, (c) £1.01 to £2; (d) £2.01 to £3; (e) £3.01 to £4; payment made under the chronic obstructive pulmonary (f) £4.01 to £5; (g) £5.01 to £6; (h) £6.01 to £7; disease (COPD) scheme to claimants represented as (i) £7.01 to £8; (j) 8.01 to £9; (k) £9.01 to £10; listed above is shown in the table below as at 8 February (l) £10.01 to £15; (m) £15.01 to £20; (n) £20.01 to 2009. £30; (o) £30.01 to £50; (p) £50.01 to £75; (q) £75.01 to £100; (r) £100.01 to £200; (s) £200.01 to £300; Claimants’ Representatives COPD (£) (t) £300.01 to £400; (u) £400.01 to £500; (v) £500.01 Beresfords Solicitors 2,531 to £750; (w) £750.01 to £1,000; (x) £1,000.01 to Wake Smith 2,784 £1,500; (y) £1,500.01 to £2,000; (z) £2,000 to £3,000; Ashton Morton Slack LLP 3,080 and what is the average sum of costs paid to claimants’ Moss Solicitors 4,083 solicitors for undertaking each scheme case. Corries York 2,371 [HL1513] WA 155 Written Answers[LORDS] Written Answers WA 156

Lord Hunt of Kings Heath: We do not have Claimants’ Representatives COPD (£) the information regarding deductions made from Browell Smith & Co 6,414 compensation as the department is not party to any Mark Gilbert Morse 7,468 agreement between claimants and their representatives. Avalon Solicitors 2,332 Asked by Lord Lofthouse of Pontefract BRM Solicitors 2,665 Atteys 5,058 To ask Her Majesty’s Government what is the Simpson Millar Solicitors 4,895 total amount of deductions made from compensation Oxley & Coward Solicitors 4,544 awarded to claimants in the British Coal vibration Union of Democratic 3,161 white finger litigation and paid over to the National Mineworkers Union of Mineworkers by (a) Thompsons Solicitors; Gorman Hamilton Solicitors 3,119 (b) Raleys Solicitors; and (c) Graysons Solicitors. Delta Legal 2,249 [HL1517] TLW Solicitors 3,217 Barber & Co 2,785 Lord Hunt of Kings Heath: We do not have the Asked by Lord Lofthouse of Pontefract information regarding deductions made from compensation as the department is not party to any To ask Her Majesty’s Government what is the agreement between claimants and their representatives. average sum in compensation awarded in the British Coal vibration white finger litigation to claimants represented by (a) Beresfords Solicitors LLP; (b) Wake Carbon Monoxide Poisoning Smith; (c) Ashton Morton Slack LLP; (d) Moss Question Solicitors LLP; (e) Corries York; (f) Browell Smith; Asked by Baroness Finlay of Llandaff (g) Mark Gilbert Morse; (h) Avalon Solicitors; (i) BRM Solicitors; (j) Atteys; (k) Simpson Millar; To ask Her Majesty’s Government whether data (l) Oxley & Coward; (m) The Union of Democratic on non-fatal carbon monoxide poisoning are centrally Mineworkers and its claims company, Vendside collated. [HL1564] Limited; (n) Gorman Hamilton; (o) Delta Legal; (p) TLW Solicitors; and (q) Barber & Co. [HL1515] The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): Data on non-fatal cases of carbon monoxide poisoning are Lord Hunt of Kings Heath: The average compensation not centrally collated. payment made under the vibration white finger (VWF) While data on hospital admissions for treatment of scheme to claimants represented as listed above is carbon monoxide poisoning are centrally collated, shown in the table below as at 8 February 2009. these do not include patients who are not admitted to hospital having been treated by their general practitioner Claimants’ Representatives VWF (£) or other staff. Beresfords Solicitors 10,387 Wake Smith 10,758 Ashton Morton Slack LLP 9,344 Civil Service: Bonuses Moss Solicitors 10,487 Question Corries York 11,897 Asked by Lord Laird Browell Smith & Co 10,818 Mark Gilbert Morse 6,199 To ask Her Majesty’s Government how much Avalon Solicitors 6,197 was spent on bonuses for members of the civil BRM Solicitors 16,562 service in the last financial year; and what is the Atteys 14,510 estimate for the current financial year. [HL1434] Simpson Millar Solicitors 9,598 Oxley & Coward Solicitors 12,830 Lord Patel of Bradford: Under the delegated pay Union of Democratic 10,606 arrangements for staff outside the Senior Civil Service Mineworkers (SCS), departments and agencies must have reward Gorman Hamilton Solicitors 16,576 systems that include a close and effective link between Delta Legal - pay and performance. Detailed information on TLW Solicitors 9,981 performance payments is not collected centrally, but Barber & Co - data that are held indicate that the cost is approximately Asked by Lord Lofthouse of Pontefract 1 per cent of the total pay bill. For the SCS, performance payments are used to To ask Her Majesty’s Government what is the incentivise staff to deliver business objectives successfully. total amount of deductions made from compensation Reward arrangements for the SCS, including the size awarded to claimants in the British Coal respiratory of the non-consolidated performance pay pot, are disease litigation and paid over to the National based on the recommendations of the independent Union of Mineworkers by (a) Thompsons Solicitors; Senior Salaries Review Body (SSRB). In 2007-08, (b) Raleys Solicitors; and (c) Graysons Solicitors. 7.6 per cent of the SCS pay bill was available as [HL1516] non-consolidated payments. Only 7.1 per cent of the WA 157 Written Answers[4 MARCH 2009] Written Answers WA 158 pay bill was spent in this way, equating to £23.1 million. previous disclosure; the disclosure may have been tampered In his Written Ministerial Statement of 17 June 2008, with; or the person’s identity may have been checked my right honourable friend the Prime Minister accepted incorrectly. It is the responsibility of the employer to the SSRB’s recommendation that 8.6 per cent of the ensure that their staff are suitable to work with children. SCS pay bill be made available as non-consolidated Therefore, the employer should satisfy themselves that payments in 2008-09. These payments have not yet checks have been completed correctly and that the been made. employer has the full information to make a decision. The introduction of the vetting and barring scheme Civil Service: Salaries from October 2009 will improve safeguarding Question arrangements. However, we have proposed to continue the requirement for CRB checks as it is important Asked by Lord Ouseley those who employ people who work in the looked-after To ask Her Majesty’s Government how many children’s sector have access to the more finely grained civil servants are currently paid in excess of (a) £100,000, criminal history in order to decide on suitability. We and (b) £200,000 per annum. [HL824] will review current statutory requirements for CRB disclosures once the vetting and barring scheme has Lord Patel of Bradford: The information requested been fully implemented across the workforce. falls within the responsibility of the UK Statistics Authority. I have asked the authority to reply to the noble Lord. Crown Prosecution Service Question Letter from Dennis Roberts, Director, Surveys and Administrative Sources Directorate, Office for National Asked by Lord Tebbit Statistics, dated January 2009 to Lord Ouseley. The National Statistician has been asked to reply to To ask Her Majesty’s Government whether it is your recent Parliamentary Question concerning how their aim that the composition of staff working in many civil servants are currently paid in excess of the Crown Prosecution Service should be representative (a) £100,000 and (b) £200,000 per annum. I am replying of the community it serves. [HL1040] in her absence. (HL824.) The Office for National Statistics collects the annual The Attorney-General (Baroness Scotland of Asthal): salaries of civil servants, as part of the Annual Civil The Crown Prosecution Service aims to appoint all Service Employment Survey (ACSES). staff based on merit drawing from the widest talent At 31 March 2008, there were 700 permanent civil pools, and in doing so to reflect the community it servants earning in excess of £100,000 and 10 permanent serves. civil servants earning in excess of £200,000 (Annex A). Annex A Debt: Public Projects Civil servant salaries in excess of (a) £100,000 and (b) £200,000 per Question annum Permanent employees Asked by Lord Inglewood Headcount To ask Her Majesty’s Government what is the Greater than £100,000 Greater than £200,000 approximate net present value of the debt incurred Number of civil 700 10 in respect of public projects paid for by public servants1 private partnership mechanisms and their predecessors. Source: [HL1644] (Unpublished) Annual Civil Service Employment Survey 1 Numbers are rounded to the nearest 10. The Financial Services Secretary to the Treasury (Lord Myners): The full list of all signed private finance Criminal Records Bureau initiative (PFI) projects can be found on HM Treasury’s Question website at www.hm-treasury.gov.uk/ppp_pfi_stats.htm. For each PFI project, this list details the project name, Asked by The Earl of Listowel the capital value, the constituency, the procuring authority To ask Her Majesty’s Government whether they and the annual unitary charge that needs to be paid will introduce measures to allow the portability of over the life of the contract. Criminal Records Bureau enhanced disclosure checks HM Treasury uses departmental returns as the for people moving between similar jobs in the looked basis for its statistics on PFI projects published at each after children sector. [HL1701] Pre-Budget and Budget Report. These are in turn based on HM Treasury’s Green Book, which can The Parliamentary Under-Secretary of State, be found on the Treasury’s website at www.hm- Department for Children, Schools and Families (Baroness treasury.gov.uk/data_greenbook_index.htm and which Morgan of Drefelin): We understand that there is some sets out guidance for the calculation of net present cost and effort involved in obtaining new CRB disclosures value. HM Treasury does not hold records for all for each new member of staff. However, there are risks public projects paid for by other public-private partnership associated with porting disclosures. For example, there mechanisms and their predecessors; these are the may have been a new offence committed since the responsibility of the relevant procuring authority. WA 159 Written Answers[LORDS] Written Answers WA 160

Emissions Trading Scheme (Age) Regulations 2006. Data on age and other employee Question characteristics are collected and published through the Office for National Statistics’s Annual Civil Service Asked by Lord Dykes Employment Survey. The survey results include tables that show the age profile across the Civil Service and a To ask Her Majesty’s Government what specific breakdown by department; the results of the most support they will give to the United Kingdom recent survey for 2008 can be found on their website at Chamber of Shipping’s initiative to secure a global www.statistics.gov.uk/StatBase/Product.asp?vlnk= emissions trading scheme. [HL1672] 2899&Pos=&ColRank=1&Rank=422.

The Minister of State, Department of Energy and Climate Change & Department for Environment, Food Government: Minutes of Meetings and Rural Affairs (Lord Hunt of Kings Heath): The Questions Government have always stated a preference for a global emissions trading scheme and we are actively Asked by Baroness Miller of Chilthorne Domer pursuing this option in the International Maritime To ask Her Majesty’s Government further to the Organisation. We welcome the support from the chamber Written Answer by Lord West of Spithead on to achieve this outcome and its framework proposal is 29 September 2008 (WA 337-38), what protocols or a very useful contribution. However, if a consensus guidance are in place concerning the taking of cannot be reached on a global approach, we will minutes in meetings between (a) ministers and private support a EU maritime emissions trading scheme as a sector organisations, and (b) civil servants and private building block towards a global deal and we would sector organisations. [HL724] welcome the support of the chamber on an EU approach. To ask Her Majesty’s Government whether minutes are routinely taken in meetings between civil servants Energy: Oil and private sector organisations concerning matters Question of commercial interest. [HL725] Asked by Lord Taylor of Holbeach To ask Her Majesty’s Government what records are kept of meetings of (a) ministers and private To ask Her Majesty’s Government whether the sector organisations, and (b) civil servants and private Environment Agency has taken the steps necessary sector organisations. [HL726] to implement the ruling from the Court of Appeal in late 2007 in R (OSS Group Ltd) v Environment Agency that would allow oils used for lubrication Lord Patel of Bradford: All such meetings are conducted to be collected after use and cleaned up into oil in accordance with the Ministerial Code and Civil Service Code. suitable for use as a fuel. [HL1033] Guidance on record keeping is set out in the Records Management Code and Managing Private Office Records, The Minister of State, Department of Energy and which can be accessed online at www.national Climate Change & Department for Environment, Food archives.gov.uk/recordsmanagement/code/default. htm and Rural Affairs (Lord Hunt of Kings Heath): Yes. In and www.nationalarchives.gov.uk/documents/popaper July 2008 the Environment Agency issued for a 12-week sguidance-full.pdf. consultation a draft end-of-waste protocol on the production and use of processed fuel oil from waste Copies are also available in the Library of the lubricating oil. The agency is considering the responses House. to that consultation and hopes shortly to issue a post-consultation draft of the protocol. This version of the protocol will be notified to the European Guantanamo Bay: Binyam Mohamed Commission in compliance with the technical standards Questions directive and, subject to the successful conclusion of Asked by Lord Hylton that process, the protocol will be published by the agency in its final form later in 2009. To ask Her Majesty’s Government what progress the Attorney General is making in investigating possible criminal wrongdoing by British and United Equality: Age States security services in the case of Mr Benyam Question Mohammed Al-Habashi; whether they will publish Asked by Lord Ouseley a report or make an announcement on the matter; and, if so, when. [HL1027] To ask Her Majesty’s Government how they audit age equality in personnel matters when most The Attorney-General (Baroness Scotland of Asthal): departments do not collect and analyse staff age The Home Secretary referred the question of possible data. [HL1610] wrongdoing by intelligence and security personnel in the Binyam Mohamed case to me on 23 October 2008. Lord Patel of Bradford: The Civil Service is committed I was provided with the open and closed judgments of to recruiting and developing people of all ages, an the Divisional Court in the case; transcripts of all the approach that is consistent with the Employment Equality evidence given by witness B; the other evidence and WA 161 Written Answers[4 MARCH 2009] Written Answers WA 162 submissions made to the court; and the Foreign Secretary’s You ask when I will report a decision on when PII (public interest immunity) certificates, together further action will be taken. You will understand it is with their sensitive schedules and associated documents. not possible to give a precise timescale. There is a I have also received material from third parties substantial quantity of material to consider. Some of about the case. it is very highly classified and must be handled under the most secure conditions. It is being considered by After undertaking a preliminary review of this material specialist prosecutors within the CPS who are progressing I took the view that I should seek advice from the this important work as quickly as possible. Director of Public Prosecutions. All the material provided to me has been made available to the DPP. I would intend to report to Parliament on my assessment. But you will understand that what can be At this stage no decision has been reached and it said publicly at any given stage may depend on a would be premature to speculate as to the outcome of variety of factors, including whether any police this consideration. investigation is to follow (and the need to avoid prejudicing In performing this function as Attorney-General, I any such investigation and potential prosecution), and act wholly independently of government and in the the need to protect national security. public interest. Similarly the DPP acts as an independent prosecuting authority, subject to my statutory superintendence. You will understand it is not possible to give a Health: Drugs precise timescale. There is a substantial quantity of Question material to consider. Some of it is very highly classified Asked by Baroness Masham of Ilton and must be handled under the most secure conditions. It is being considered by specialist prosecutors within To ask Her Majesty’s Government what is the the CPS who are progressing this important work as total number of prescribing and dispensing errors quickly as possible. involving immunosuppressant therapies Prograf and I would intend to report to Parliament on my Advagraf by (a) prescribing clinicians, and (b) assessment. But you will understand that what can be dispensing healthcare professionals. [HL1662] said publicly at any given stage may depend on a variety of factors, including whether any police investigation is to follow (and the need to avoid prejudicing The Parliamentary Under-Secretary of State, any such investigation and potential prosecution), and Department of Health (Lord Darzi of Denham): The the need to protect national security. National Patient Safety Agency has advised that 19 patient safety incidents relating to prescribing and dispensing Asked by Lord Campbell-Savours of immunosuppressant therapies Prograf and Advagraf were submitted to its reporting and learning system To ask Her Majesty’s Government when the between 1 January 2005 and 30 November 2008. Attorney General will report a decision on whether further action will be taken in the case of Binyam These include nine prescribing incidents. Five of Mohamed. [HL1725] these related to omitted or delayed doses of Prograf or Advagraf in hospital settings, one to a poorly hand written prescription, two where the wrong formulation of tacrolimus (the active ingredient in these therapies) Baroness Scotland of Asthal: The Home Secretary had been prescribed and one to a possible interaction referred the question of possible wrongdoing by between an oral antibiotic and Prograf. intelligence and security personnel in the Binyam Mohamed case to me on 23 October 2008. I was The remaining 10 were dispensing incidents. In four provided with the open and closed judgments of the of these, the wrong formulation of tacrolimus had Divisional Court in the case; transcripts of all the been dispensed. Two incidents related to omitted or evidence given by witness B; the other evidence and delayed doses of Prograf or Advagraf in hospital submissions made to the court; and the Foreign Secretary’s settings, two where there was an unclear or wrong PII (public interest immunity) certificates, together dose, one incident involving expired stock and one with their sensitive schedules and associated documents. incident where the wrong quantity of capsules had been dispensed. I have also received material from third parties about the case. All 19 incidents resulted in low or no harm. After undertaking a preliminary review of this material I took the view that I should seek advice from the Director of Public Prosecutions. All the material provided Housing: Oil to me has been made available to the DPP. Question At this stage no decision has been reached and it Asked by Lord Taylor of Holbeach would be premature to speculate as to the outcome of this consideration. To ask Her Majesty’s Government what is their In performing this function as Attorney-General, I assessment of the financial situation of rural act wholly independently of government and in the households which, because they have no access to a public interest. Similarly the DPP acts as an independent gas supply, have to pay large sums of money for prosecuting authority, subject to my statutory bulk deliveries of oil; and what action they will take superintendence. to address this issue. [HL1349] WA 163 Written Answers[LORDS] Written Answers WA 164

The Minister of State, Department of Energy and International Whaling Commission Climate Change & Department for Environment, Food Questions and Rural Affairs (Lord Hunt of Kings Heath): The most recently published fuel poverty figures show that Asked by Lord Ashcroft in 2006 around 2.7 million households in England To ask Her Majesty’s Government further to the were not connected to the mains gas network, with Written Answer by Lord Hunt of Kings Heath on around 20 per cent of them estimated to be in fuel 28 January (WA 59), whether the options presented poverty. Around 900,000 households rely on heating to the United Kingdom and other member nations oil as their main fuel for central heating and just under of the International Whaling Commission (IWC) a quarter of these were fuel poor in 2006. in the non-paper “Chairs’ suggestions on the Future Warm Front is the Government’s flagship scheme of the IWC” on 2 February were produced in for tackling fuel poverty in the private sector in England consultation with civil society representatives to for vulnerable householders. The scheme currently allow input, comment and review prior to their provides grants for specified insulation and heating distribution. [HL1630] measures up to the value of £2,700. or £4,000 for oil central heating (including properties with no access to The Minister of State, Department of Energy and the gas network). Climate Change & Department for Environment, Food The Government recognise the specific challenge of and Rural Affairs (Lord Hunt of Kings Heath): No, assisting properties in rural communities. The Warm these suggestions were produced by the chairs of the Front Scheme Management Board considers on a International Whaling Commission (IWC) and the regular basis whether to approve appropriate alternative so-called Small Working Group (SWG) on their own technologies on to the scheme, where they might prove initiative. Under the terms of the process agreed by the cost-effective. One example is through Warm Front IWC for considering its future, the meetings and and National Energy Action where we are currently proceedings of the SWG and its subgroups are carrying out a pilot using solar thermal technology confidential, and not open to representatives of civil together with electric heating. society. Civil society will, however, have an opportunity In addition, Warm Front has a networking team to comment and question the chairs’ suggestions at which operates in rural areas to help bring assistance the intersessional meeting of the IWC which will take to vulnerable households in rural communities. Proactively place in Rome from 9 to 11 March. engaging with local organisations and area-based schemes, Asked by Lord Ashcroft the team helps to increase the take-up of grants and energy efficiency advice in rural areas. To ask Her Majesty’s Government whether any The carbon emissions reduction target (CERT) is of the options presented for consideration to the the Government’s principal policy for driving up United Kingdom and other member nations of the household energy efficiency by 2011. Under CERT the International Whaling Commission on 2 February major energy suppliers have an obligation to direct at would (a) legalise Japan’s catches for up to five least 40 per cent of carbon savings at priority group years in the Southern Ocean sanctuary; (b) legalise households. This includes important measures for hard- Japan’s catches of coastal minke whales; and (c) legalise to-treat homes such as solid wall insulation and central commercial hunting by Japan of minke whales, heating. Suppliers installed around 80,000 heating Bryde’s whales, sei whales or sperm whales in the measures through fuel switching in the previous three-year North Pacific Ocean. [HL1631] obligation period to March 2008 (the second energy efficiency commitment, EEC2). The Government Lord Hunt of Kings Heath: Under the terms of recognise there is a high up-front cost for these measures Article VIII of the International Convention on the and therefore under CERT we have introduced specific Regulation of Whaling, Japan’s lethal research takes incentives to help improve the financial viability of of minke whales in the Southern Ocean and of minke, fuel switching, with a particular focus on homes which Bryde’s, sei and sperm whales in the North Pacific are, are off the gas grid. regrettably, quite legal. Any decision by the International The principal barrier to providing new gas connections Whaling Commission (IWC) to set quotas for North to communities and households beyond the mains gas Pacific whale species (whether for highly localised use network is the cost to the customer. Ofgem recognises by the people of coastal communities in Japan who the benefits that access to gas offers low-income have a tradition of whaling, or for wider commercial households, and has incentivised the large gas networks use) would require to be framed as amendments to the to connect deprived communities under the 2008-13 schedule to the International Convention on the gas distribution price control. This packages a range Regulation of Whaling, and could be brought into of existing funding sources and uses independent gas force only by a three-quarter majority vote of those transporters with an aim of ensuring the maximum present and voting at a recognised meeting of the number of vulnerable and fuel poor households should IWC. The intersessional IWC meeting which will take be connected to the gas network at least cost. Those place in Rome from 9 to 11 March has no power to households who will be assisted under the scheme make such decisions. qualify because they either reside within the 20 per Asked by Lord Ashcroft cent most deprived areas according to the index of multiple deprivation, qualify for assistance under Warm To ask Her Majesty’s Government whether the Front (or similar schemes in the devolved nations) or “Chairs’ suggestions on the Future of the International fall within the priority group under CERT. Whaling Commission” paper proposes a solution WA 165 Written Answers[4 MARCH 2009] Written Answers WA 166

that will end the large-scale unilateral catches currently Lord Hunt of Kings Heath: Save through an issued under Special Permits by Japan or other amendment to Article VIII of the International countries such as Iceland. [HL1632] Convention on the Regulation of Whaling (which would probably require the convening of a formal Lord Hunt of Kings Heath: The right of any contracting diplomatic conference to adopt it and subsequent Government to the International Whaling Commission ratification by all parties to bring it into effect), the (IWC) to issue special permits and to conduct lethal International Whaling Commission has no power to research whaling is enshrined in Article VIII of the alter the legal status of whaling under special permit. International Convention on the Regulation of Whaling The UK could agree to the legalisation of other forms (ICRW). The chairs’ suggestions do not include any of whaling only if it was convinced that by doing so it proposal to amend Article VIII. The extent to which would bring about a significant improvement of whale current so-called scientific whaling may or may not be conservation in the long term. curtailed as a result of pursuing any of the options Asked by Lord Ashcroft advanced in the chairs’ paper will depend on the willingness of those Governments currently pursuing To ask Her Majesty’s Government whether they such operations to scale them back voluntarily, in will urge other European Union nations that are exchange for other possible concessions. There would members of the International Whaling Commission be no legal recourse for the IWC if such voluntary to oppose and vote against any of the options that action were ever discontinued. would legalise whale catchers in the Southern Ocean Asked by Lord Ashcroft sanctuary or the North Pacific Ocean that were To ask Her Majesty’s Government whether the included in the non-paper Chairs’ suggestions on “Chairs’ suggestions on the Future of the International the Future of the IWC presented to the United Whaling Commission” paper contains a proposal Kingdom and other member nations of the that would require Japan to cease importing whale Commission on 2 February. [HL1660] products from other countries including Iceland or Norway or from any other nation that issues special Lord Hunt of Kings Heath: The options included in permits for its nationals to catch great whales. the chairs’ suggestions on the future of the International [HL1633] Whaling Commission (IWC) are not sufficiently clear to enable a definitive evaluation of them to be made. Lord Hunt of Kings Heath: No. Trade matters are At the intersessional meeting of the IWC, the UK will within the competence of the Convention on International seek to probe their meaning and determine whether Trade in Endangered Species and outside that of the there is any likelihood that they could subsequently be International Convention on the Regulation of Whaling. framed as amendments to the schedule to the International Asked by Lord Ashcroft Convention on the Regulation of Whaling which could command support. In so far as options are worked up To ask Her Majesty’s Government whether at into amendments (which will not be up for consideration the International Whaling Commission (IWC) meeting until the annual meeting of the IWC in June), the UK in Rome in March and the annual IWC meeting in will certainly urge those EU member states which are Madeira in June the United Kingdom will oppose also members of the IWC to oppose and vote against and vote against any options that defer resolution any measures, the adoption of which would not guarantee of urgent issues. [HL1634] a significant improvement in the conservation status of whales in the long term. Lord Hunt of Kings Heath: At the intersessional meeting of the International Whaling Commission in Rome in March, the UK delegation will seek to explore NHS: Cleanliness whether any of the options suggested by the chairs in Question their paper could possibly be viable, viability being considered against the requirements that they are Asked by Baroness Tonge achievable and would guarantee in the long term a To ask Her Majesty’s Government what assessment significant reduction in the number of whales hunted they have made of the relative standards of cleanliness and killed. At the annual meeting in Madeira, the UK at work for hospital kitchen staff and for hospital would not support the adoption of any measure which nurses. [HL1642] it considered prejudicial to the conservation of whales. Asked by Lord Ashcroft The Parliamentary Under-Secretary of State, To ask Her Majesty’s Government whether at Department of Health (Lord Darzi of Denham): Standards the International Whaling Commission (IWC) meeting of cleanliness in the National Health Service are measured in Rome in March and the annual IWC meeting in against The National Specifications for Cleanliness in Madeira in June the United Kingdom will vote the NHS: A Framework for Setting and Measuring against options contained in the “Chairs’ suggestions Performance Outcomes, first published in 2001 (a copy on the Future of the International Whaling of which has already been placed in the Library) and Commission” paper that would legalise catches of the Patient Environment Action Team (PEAT) annual whales either in the Southern Ocean Sanctuary or inspection programme introduced in 2000. This latter in the North Pacific Ocean to ensure such options programme includes an assessment of ward kitchens. are not agreed either by consensus or through an The Healthcare Commission monitors cleanliness by abstention by the United Kingdom. [HL1635] means of its national in-patient surveys and annual WA 167 Written Answers[LORDS] Written Answers WA 168 health check. It also carries out specialist inspections for both large and small laundry service providers. against the Health Act 2006 code of practice which Improvements have also been made to aspects of the include an assessment of cleanliness. By all these guidance concerned with laundry sorting and management measures, hospital cleanliness has improved in every at hospital ward level. year since measurements began in 2000. The department has commissioned additional research No specific assessment has been made of the relative on the removal of Clostridium difficile spores from standards of cleanliness as detailed in the question. laundry. The results of this research will, if necessary, Production kitchens will be the subject of separate shape aspects of the guidance. requirements under local environmental provisions. Department practice requires that the draft guidance be subject to peer review before final publication can take place. The department intends to publish HTM NHS: Infected Linen 01-04, subject to a successful peer review, during the Questions autumn of 2009. Asked by Baroness Tonge To ask Her Majesty’s Government what action NHS: Nurses they are taking to revise the Health Technical Question Memorandum 01–04 “The Management of Used Asked by Baroness Tonge and Infected Linen in the Healthcare Sector”. [HL1638] To ask Her Majesty’s Government when they To ask Her Majesty’s Government what discussions expect changing facilities for nurses to be mandatory they have had with industry representatives on the in all NHS hospitals. [HL1641] revision of Health Technical Memorandum 01–04 “The Management of Infected Linen in the Healthcare The Parliamentary Under-Secretary of State, Sector”. [HL1639] Department of Health (Lord Darzi of Denham): It is To ask Her Majesty’s Government when they the responsibility of each National Health Service expect to publish the revised Health Technical trust to develop and maintain its own policies in Memorandum 01–04 “The Management of Infected relation to the provision of changing facilities for staff. A trust’s chief executive has the responsibility for and Used Linen in the Healthcare Sector”. [HL1640] ensuring that nurses have enough suitable clothing and equipment to carry out their work effectively and The Parliamentary Under-Secretary of State, to make any other supporting arrangements that may Department of Health (Lord Darzi of Denham): The be necessary. document Health Technical Memorandum (HTM) In order to support and advise trusts in the review 01-04 The Management of Used and Infected Linen in and maintenance of such local policies, the department’s the Healthcare Sector does not currently exist and Working Group on Uniforms and Laundry put together therefore there is no revision taking place. The current an evidence base on the wearing and laundering of guidance associated with this area is HSG (95) 18— uniforms outlining the existing legal requirements and Hospital Laundry Arrangements for Used and Infected current research findings. This document, Uniforms Linen. and Workwear: Evidence Base for Developing Local The department is currently producing HTM 01-04: Policy, was published in September 2007 and a copy Decontamination of Laundry and Infected Linen (working has already been placed in the Library. Copies can title) as part of the suite of HTM documents that also be obtained via the department’s website at provide guidance on decontamination in the healthcare www.dh.gov.uk/en/Publicationsandstatistics/ sector. HTM 01-04 is intended to provide a replacement Publications/PublicationsPolicyAndGuidance/ for HSG (95) 18—Hospital Laundry Arrangements DH078433. for Used and Infected Linen and provide a more complete guidance package on uniform and laundry decontamination to assist with the reduction of risks Petitions associated with healthcare-associated infections. Questions HTM 01-04 is being produced with the assistance Asked by Lord Greaves of a wide cross-section of stakeholders who have been engaged in a formal steering group with departmental To ask Her Majesty’s Government how many officials and the technical authors for the document. petitions the Department for Transport received in The steering group is actively involved in contributing (a) 2007 and (b) 2008; what steps the department evidence and in the review of the draft guidance has taken to publicise them; and whether they will material. The steering group membership includes a place the text of the petitions received and the broad range of industry representatives including, among number of signatures in the Library of the House. others, the Textile Services Association and Sunlight [HL1646] Services Group as representatives of industry. The approach and structure used within this guidance The Minister of State, Department for Transport has been changed following consultation with the (Lord Adonis): The information requested is not held steering group members. The changes are intended to centrally and could only be provided at disproportionate ensure that the guidance is equally usable and useful cost. WA 169 Written Answers[4 MARCH 2009] Written Answers WA 170

Asked by Lord Greaves Corbett of Castle Vale on 3 December (HL 38) and by Lord Hylton on 8 December (HL 145). [HL1402] To ask Her Majesty’s Government what procedures the Department for Transport has for receiving, acknowledging, dealing with and responding to petitions received from members of the public. The Lord President of the Council (Baroness Royall [HL1647] of Blaisdon): A response was sent to Lord Corbett of Castle Vale on 3 March 2009 (Official Report, col. WA141) Lord Adonis: All petitions are received by the by my right honourable friend Baroness Taylor of department’s staff and brought to the attention of the Bolton, and to Lord Hylton on 11 February 2009 responsible Minister. There is no formal process to (Official Report, col. WA 196) by my right honourable respond to petitions. friend Lord Davies of Oldham. Public Bodies Questions Asked by Lord Oakeshott of Seagrove Bay Railways: North-west To ask Her Majesty’s Government whether they Question will give the information contained in table 4 (appointments to the boards of public bodies) of Asked by Lord Greaves Public Bodies 2008, published by the Cabinet Office, in relation to executive non-departmental public To ask Her Majesty’s Government in relation to bodies only. [HL1214] the reinstatement of Todmorden Curve and following their statement in the Pennine Lancashire multi-area To ask Her Majesty’s Government what was the agreement (MAA) that “DfT will work with Pennine total number of female appointees to non-departmental Lancashire MAA, Northern and Network Rail to public bodies, and their percentage of total appointees, facilitate the introduction of a new service in the for each of the past 10 years (a) including, and (b) period 2009–2014 (CP4) for which funding would excluding, Ministry of Justice non-departmental need to be sourced by local authorities”, (a) what public bodies. [HL1215] actions they have taken and will take to support Lord Patel of Bradford: This information is not and progress this proposal; (b) to which local authorities held centrally. The annual public bodies report provides it refers, and (c) whether any of those local authorities information on the number of women serving on the are outside the Pennine Lancashire area which would boards of non-departmental public bodies (NDPBs), be served by such a new service. [HL1820] NHS bodies and national public corporations. This information is broken down by department. The Commissioner for Public Appointments’s annual report The Minister of State, Department for Transport provides information on the total number of women (Lord Adonis): Department for Transport officials have appointed and reappointed to the boards of executive had a meeting with Blackburn with Darwen Council, NDPBs during the financial year. Copies of Public Lancashire County Council, Burnley Borough Council Bodies and of the commissioner’s annual reports are and Greater Manchester Passenger Transport Executive available from the Libraries of the House. A copy (GMPTE) to explain the process for taking the project of the commissioner’s latest annual report is available forward. A further meeting is to take place in mid-March, from her website at www.publicappointments along with Network Rail, and officials will attend commissioner.org. future meetings as necessary when requested by the Questions for Written Answer: Unanswered promoters. Questions It would be for Lancashire County Council and Burnley Borough Council to act as promoters for this Question project as a new service would primarily benefit their Asked by Lord Tebbit area. To ask Her Majesty’s Government what are the The new service would run to Manchester via Rochdale constraints which have prevented them from giving and these places are within the GMPTE area, but replies to the Written Questions tabled by Lord outside the Pennine Lancashire area.

Wednesday 4 March 2009

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Armed Forces: Aircraft ...... 53 Kosovo ...... 56 Northern Ireland Office: Contingency Fund...... 56 EU: Competitiveness Council...... 53 Service Complaints Commissioner ...... 57 Further Education: Capital Investment ...... 55 Women: Economic Downturn ...... 58

Wednesday 4 March 2009

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Apprenticeships ...... 149 Equality: Age...... 159

Aviation: Canada Geese...... 149 Government: Minutes of Meetings ...... 160

British Association for Parenteral and Enteral Nutrition. 150 Guantanamo Bay: Binyam Mohamed ...... 160

British Coal Compensation...... 150 Health: Drugs ...... 162

Carbon Monoxide Poisoning...... 156 Housing: Oil ...... 162 International Whaling Commission ...... 164 Civil Service: Bonuses ...... 156 NHS: Cleanliness...... 166 Civil Service: Salaries...... 157 NHS: Infected Linen...... 167 Criminal Records Bureau...... 157 NHS: Nurses...... 168 Crown Prosecution Service ...... 158 Petitions...... 168 Debt: Public Projects ...... 158 Public Bodies ...... 169

Emissions Trading Scheme...... 159 Questions for Written Answer: Unanswered Questions.... 169

Energy: Oil...... 159 Railways: North-west...... 170 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL724] ...... 160 [HL1137] ...... 152

[HL725] ...... 160 [HL1138] ...... 152

[HL726] ...... 160 [HL1214] ...... 169

[HL824] ...... 157 [HL1215] ...... 169

[HL1027] ...... 160 [HL1349] ...... 162

[HL1033] ...... 159 [HL1402] ...... 170

[HL1040] ...... 158 [HL1434] ...... 156

[HL1133] ...... 150 [HL1488] ...... 152

[HL1134] ...... 151 [HL1512] ...... 153

[HL1136] ...... 151 [HL1513] ...... 153 Col. No. Col. No. [HL1514] ...... 154 [HL1635] ...... 165

[HL1515] ...... 155 [HL1638] ...... 167

[HL1516] ...... 155 [HL1639] ...... 167

[HL1517] ...... 156 [HL1640] ...... 167

[HL1560] ...... 149 [HL1641] ...... 168 [HL1642] ...... 166 [HL1564] ...... 156 [HL1644] ...... 158 [HL1566] ...... 150 [HL1646] ...... 168 [HL1577] ...... 149 [HL1647] ...... 169 [HL1610] ...... 159 [HL1660] ...... 166 [HL1630] ...... 164 [HL1662] ...... 162 [HL1631] ...... 164 [HL1672] ...... 159

[HL1632] ...... 165 [HL1701] ...... 157

[HL1633] ...... 165 [HL1725] ...... 161

[HL1634] ...... 165 [HL1820] ...... 170 Volume 708 Wednesday No. 41 4 March 2009

CONTENTS

Wednesday 4 March 2009 Questions Equality: Volunteers ...... 725 Schools: Music ...... 727 St Helena Airport...... 730 Gaza: Reconstruction...... 732 Corporation Tax Bill First Reading ...... 734 Borders, Citizenship and Immigration Bill [HL] Committee (Third Day)...... 734 Northern Ireland Criminal Injuries Compensation Scheme 2009...... 804 Draft of Alterations to the Northern Ireland Criminal Injuries Compensation Scheme 2002 Motions to Approve...... 810 Northern Ireland Bill First Reading ...... 810 Criminal Damage (Compensation) (Amendment) (Northern Ireland) Order 2009 Motion to Approve ...... 810 Borders, Citizenship and Immigration Bill [HL] Committee (Third Day) (Continued) ...... 815 Grand Committee Health and Social Care Act 2008 (Registration of Regulated Activities) Regulations 2009 ...... GC 305 European Parliamentary Elections (Franchise of Relevant Citizens of the Union) (Amendment) Regulations 2009 ...... GC 310 Representation of the People (Amendment) Regulations 2009...... GC 315 Parliamentary Constituencies (England) (Amendment) Order 2009 Debated...... GC 318 Written Statements...... WS 53 Written Answers...... WA 149