House of Lords
Thursday, 11 October 2007.
The House met at eleven o'clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Winchester.
Gulf War Illnesses
My Lords, the health of Gulf veterans and support of their families remain a high priority for the Government. Appropriate pensions are paid. We have written to advise veterans on how they can have the label “Gulf War syndrome” applied to their disablements as an umbrella term. We are working with appropriate experts to develop a rehabilitation programme, and we are monitoring international research. We shall consider further reasonable proposals for UK research.
My Lords, while I am grateful to my noble friend, is it not disquieting that, 17 years on from the conflict, wrangling with veterans over pensions still drags on, with no visible sign of closure? Can he now at least make it clear that Gulf War syndrome will be fully recognised as a meaningful condition by the MoD, both publicly and when making assessment decisions, as it is by the Pensions Appeal Tribunal?
Finally, is it not deeply shaming that Gulf War veteran Terence Walker, whose case I raised orally earlier this year, his pension having been cut from 100 per cent to 40 per cent, died shortly after being left, together with dependent children—to quote his own words—“in financial ruin”? What sort of appreciation does that betoken of those prepared to lay down their lives for this country?
My Lords, my noble friend is absolutely right to raise these issues, as he has over many years. The issue of Gulf War syndrome will be fully recognised by the Ministry of Defence, and I accept on behalf of the Ministry of Defence that this issue has not been handled well from the beginning. The department was slow to recognise the emerging ill health issues and to put measures in place to address them. We have apologised for this, and I repeat that apology today.
With regard to the specific case that my noble friend mentions, I should also like to apologise on behalf of the Ministry of Defence to Mr Walker’s family. The Ministry of Defence made a mistake, and it has written to the Walker family to make that clear.
My Lords, I am sure that many will be grateful to hear the MoD’s belated apology for the way in which this situation has been handled, but has not the time come to discontinue inconclusive research into the reasons for Gulf War syndrome and devote the money instead to compensating those individuals who are clearly ill but who do not have an established pathology? Surely they should be compensated, as has been approved by the Pensions Appeal Tribunal in at least one case.
My Lords, I understand the noble and gallant Lord’s point. However, we think that it is right to continue to invest in research where we are advised by the Medical Research Council that such research makes sense and is likely to lead to further understanding. However, the emphasis of that research is on the rehabilitation of veterans as opposed to research into possible causal links. We do not believe that it is right to pay compensation and make ex gratia payments. Gulf veterans already receive compensation under the war pensions scheme with respect to their disabilities. To provide an additional payment would in effect be to pay them twice. We do not think that that is appropriate.
My Lords, will the Minister consider the fact that the Americans, our closest ally in that conflict, have been considerably more speedy and more generous in dealing with this situation? Should not this be a case in which Great Britain is following the American lead?
My Lords, as I have already said to the House, I accept that the way in which this has been handled by the department has not been good. However, the measures that we have put in place, the recognition of the umbrella term, the letters to veterans, the research that is being undertaken and the focus on rehabilitation are in response to that recognition. The noble Lord says that the Americans have been more generous and have acted more speedily; I do not think that is a helpful comparison to make at this time. The Ministry of Defence is now doing everything that it should be doing in this case; however, it should have done it earlier.
My Lords, does the Minister accept—I think he does—that it has taken the veterans years to persuade the Ministry of Defence that they are suffering from symptoms that are correctly described as Gulf War syndrome? In those circumstances, is it not time that the Ministry of Defence showed them a little magnanimity?
My Lords, I recognise the efforts that the noble and learned Lord and others have made in persuading the Ministry of Defence to respond to this issue, and I accept the criticism that he and others have made. However, on his point about closure—which is where I believe we now are on this matter—I sincerely do not believe that that can be best achieved by some form of payment. I imagine that is what the noble and learned Lord was referring to by “magnanimity”. If there are other areas, which are separate from the payment in addition to the existing war pensions, that veterans feel would help in reaching closure, we would certainly consider them.
My Lords, the Minister has made a very handsome apology, which I am sure the House greatly appreciates. This is a very serious matter. Does he agree that it might be a good use of the committee system of this House for the appropriate committee to have an investigation into how this happened, with a view to ensuring that this sort of thing does not happen again? If such an investigation were set up, would he support it and would his department give it full information and co-operation?
My Lords, I note the noble Lord’s suggestion. Clearly, it is for the House to decide how best to look into this, but the Ministry of Defence can certainly usefully learn from such issues. We are working very hard today on a number of issues relating to the military covenant, some of which go back decades. Therefore, anything that the Ministry of Defence can learn relating, for instance, to Gulf War syndrome, can be helpful in dealing with the issues that we face in modern theatres.
My Lords, to ensure a high level of consumer protection, all food additives are tested and evaluated prior to being permitted on the market. While I understand the noble Baroness’s desire for the most accessible information to be made available, it is not clear that all consumers would prefer additive names to appear on labels, some of which are long chemical names. E numbers might, therefore, be easier to identify. Moreover, the linkage between the two is easily accessible, for example, on the Food Standards Agency website.
My Lords, I am actually astounded by that reply. Does the Minister really expect people to go shopping with a little handbook so that they can look up these numbers to find out what they denote? Some of these additives are dangerous and many of them are undesirable. It is, therefore, all the more surprising that the FSA has not attempted to do anything about this and I suspect that, once again, the dead hand of the EU is preventing it.
My Lords, I understand that the noble Baroness is astounded; however, if a parent knows that an E number will be detrimental to their child’s health, it is sometimes easier to look at an E number rather than a name that might have six or seven syllables. In respect of what the FSA has done, noble Lords will be aware of Southampton University’s recent research into some additives which was, in fact, commissioned by the FSA.
My Lords, is not that the most important point? This most recent research shows substantially that some of those E numbers have real effects in terms of hyperactivity and attention deficit disorder. Is not the solution that the FSA should take up with the European Food Safety Authority whether those chemicals should still be permitted in foods? Is that not the real issue and will the Government make sure that that review takes place promptly?
My Lords, that is the real issue and that is exactly what the FSA has done; it has transmitted to the European Food Safety Agency the research advice, which is being evaluated. The EFSA will produce a report in January and we are urging the Commission to act very swiftly, once that advice has been published.
My Lords, it is important in this case to look at what the science says, rather than what the newspapers say about the science. Does the Minister agree that the scientific evidence from the Southampton study is inconclusive and that this was the conclusion reached by the statutory committee on toxicity of substances, when it examined the report? In fact, the report concludes that, out of 14 comparisons between the controls and the experimentals among children aged three and eight, only two showed a significant effect; 12 showed no effect. The question of whether or not these substances are harmful remains open. Does the Minister agree that it would be disproportionate in this circumstance to demand labelling of substances that have not been shown to be harmful?
My Lords, the noble Lord is quite correct and we must ensure that any action taken is proportionate and must be evidence-based. That is why we have transmitted the research to the European Food Safety Agency, which is undertaking further scientific research; but that is not to undervalue or underestimate the research in Southampton.
My Lords, in reply to my noble friend’s supplementary question, the Minister said that mothers of children who knew that certain E numbers were harmful to their children would not be troubled by needing to know the names. Will she tell us how the parents of those children will know which E numbers are harmful specifically to children? Secondly, will she bring out some regulation for the benefit of people of my age and above requiring that print on labels in no more than 8-point type should be accompanied by a magnifying glass?
My Lords, in respect of the first point, the FSA is having meetings with parents, with groups involved in ADHD and hyperactivity and with industry to look at better means of communicating with parents—especially hard-to-reach parents, whose children might be affected adversely. In respect of labelling and the size of print on labels, I have great sympathy with the noble Lord. I know that this matter is constantly raised in this House and I will ensure that his views are taken back to the department.
My Lords, there is not a lot of space on a label and I think that the either/or option is the easiest one at present. However, a review of labelling is being undertaken at a European level. A new draft regulation will be brought forward before Christmas, I believe, and that may have some bearing on this issue.
My Lords, did the Food Standards Agency consider that certain additives may adversely affect the mood or behaviour of children? Is there not a case for having a visible warning symbol on packages of foods which contain the additives, analogous or supplemental to the so-called traffic-light system?
My Lords, that is a very good suggestion and I think that it will be considered once the scientific evidence from the European Food Safety Authority has been received. We will then look at the various risk-management issues to see how best we can act on the new research.
Rehabilitation of Offenders Act 1974: Reform
My Lords, the Rehabilitation of Offenders Act 1974 allows certain spent convictions to be concealed in an effort to improve employment opportunities and reduce reoffending. The Government’s 2002 document, Breaking the Circle, set out proposals for reform of the Act and the Government undertook to legislate when parliamentary time allowed. They will consider whether the Breaking the Circle proposals now need to be updated in the light of the Safeguarding Vulnerable Groups Act 2006.
My Lords, does the Minister recall that in 2003 the Government announced their intention to reform this legislation? However, despite a series of criminal justice legislation, that reform has not surfaced. Does he agree that the length of the current rehabilitation period is a serious impediment to the rehabilitation of offenders who seek jobs? Is there not ample evidence that one-third to one-half of offenders who get a job are less likely to reoffend than those who do not have a job? Will the Government indicate whether such legislation is likely to surface in the Queen’s Speech?
My Lords, I understand the noble Lord’s disappointment that the Government have not yet found parliamentary time to produce the legislation in the light of Breaking the Circle. He is right both about the statistics in relation to the importance of work in stopping reoffending and in his the comment about the length of time that must pass before a conviction can be spent; Breaking the Circle argued for less time. We are sympathetic to that. I can assure the noble Lord that the department will be working on this in the light of the 2006 Act.
My Lords, does the Minister agree that the bar has been set at a fairly low level in that only punishments of up to 30 months’ detention are covered and that it takes 10 years for those to qualify? Does he also agree that, in the case of young people and persons in their 20s who have committed offences at an irresponsible period in their lives and have later reformed and lived decent and honest lives, this Act has been of particular value and merit?
My Lords, does my noble friend agree that, with all the pressures on the Prison Service at the moment, the importance of keeping an ethos of rehabilitation at the top of the priorities is essential for prisoners themselves, for the community as a whole and, indeed, for economic reasons? Does he also agree that some of the voluntary organisations involved in the rehabilitation of offenders in prisons are saying that it is a matter not just of getting a person into a job, it is a matter of ensuring that the right support is there when people go out into the community to help them make a success of their re-entry into civilised life?
My Lords, I very much agree with my noble friend. The Prison Service and Probation Service have done tremendous work in the past few years to help ex-offenders get into work. My understanding is that the latest figures, produced in August, show that 27.1 per cent of prisoners had gone into work and that a further 10.4 per cent had gone into education or training. I accept that much more needs to be done, but we are building on some very good work undertaken in the past few years.
My Lords, I could not agree more with the noble Lord’s comment. Indeed, one has to pay tribute to the many private sector organisations that have shown themselves to be very progressive in this area. There is much that the public sector can learn from the private sector and I will do everything I can to mobilise my colleagues in this matter.
My Lords, reform of the Act would clearly be helpful in meeting some of the concerns expressed about the 1974 Act. However, it is not only a question of the rehabilitation Act; as my noble friend suggested earlier, it is also about whether there is infrastructure support that encourages employers and ensures that, while they are in prison, prisoners have access to good education or training opportunities and are really given every encouragement and support to go into work. We very much require a co-ordinated effort.
My Lords, I entirely agree that opportunities for employment and housing are central if rehabilitation is to be effective. However, has the Minister any information about employers’ practices and attitudes to education which we are trying to change because they prevent ex-offenders taking up the training and further education that they may need to survive in today’s world?
My Lords, the noble Baroness raises a very important point. The fact is that half of male prisoners and over two-thirds of female adult prisoners have no qualifications at all. More than half of all prisoners screened on reception are at or below level 1 in reading, writing and maths. The link between offending and very poor educational achievement is clear and sets out the requirement and the challenge for us to ensure that, as much as possible, prisoners are given every opportunity for education and training.
My Lords, is the Minister aware of the exemplary scheme run by the National Grid in conjunction with Reading Jail whereby the National Grid has given exceptional support? It has pioneered a route that the Government should look at. Does he accept that that experience would lead to exactly what my noble colleague Lord Dholakia was suggesting?
Indeed so, my Lords. My noble friend the Leader of the House was involved in the establishment of that project. There is much that we can learn, and we are developing alliances with employers to take advantage of good practice. I certainly will commend that to my colleagues in the department. Thank you.
My Lords, Her Majesty’s Revenue and Customs intends to respond to the ombudsman’s report positively. The report makes useful recommendations on the changes to the proposed procedures for recovering overpayments which will help make them successful.
My Lords, I thank the Minister for that reply, but it completely fails to match up to the scale of the problem. This is not about the HMRC. Do the Government accept the ombudsman’s finding that complainants frequently explain how they budget carefully to avoid debt and have little or no savings to fall back on, and then how distressing it is for them that the tax credits system lands them with a significant debt at the end of the year? Do they accept the finding that the annualised system is basically a serious design fault? In particular, do the Government accept the ombudsman’s call that Parliament must examine the whole structure of the tax credits system? This is not about HMRC but about a Government sorting out a failed system.
My Lords, whether Parliament addresses itself to this issue is of course for the respective Houses to take decisions on. The Government will of course present a strong case for the benefits that tax credits have brought to the country—reducing child poverty and bringing returns to poorly resourced families.
There are problems with administration which the ombudsman quite rightly addressed. When she reported in 2005, HMRC responded positively; in fact, she commented on the positive response. Of course, HMRC intends to respond to the detailed criticisms in her present report.
My Lords, were the Government not warned time and again of the danger of getting the Inland Revenue to give money away rather than collect it? Has it not proved to be the case that they have been grossly inefficient in distributing the money, and very tough indeed in how it is being collected? As a result, an immense amount of misery has been caused to a large number of the poorest members of our community. Is this not the fault of the previous Chancellor, who was determined to switch this from social security to the Treasury?
My Lords, as I have already indicated, there have been difficulties, but the House will appreciate that in the first years of the scheme the success rate was about 79 per cent. It is now up to 97 per cent in terms of accurate assessment of what the Revenue should pay or collect. Of course, we will not rest satisfied until we are as close to 100 per cent as possible. We are mindful of the fact that every weakness impacts upon our fellow citizens but we should not detract from the enormous benefits that the scheme has brought to our people.
My Lords, the Minister just quoted a figure for accuracy which does not stand up to examination. The plain fact is that £1.7 billion was overpaid; that was the third year of the figure being nearly £2 billion. This system more regularly makes mistakes than gets it right and desperately needs a complete rethink. When will the Government deal with it?
My Lords, if the system more regularly got it wrong than right, the number of recipients dealt with accurately and effectively would, by definition, be below 50 per cent. As I have already indicated to the House, we are dealing with this on the basis of judgments being 97 per cent accurate. That does not alter the fact that the ombudsman has clearly identified weaknesses in administration. I make the obvious point that that is the ombudsman’s task: she will have areas of weakness drawn to her attention. That should not detract from the success of the scheme and, as I have indicated, the value it has brought to large numbers of our people, including children in poverty.
My Lords, is not the problem we are addressing the fact that wages do not reflect family size and family need? Equally, neither do tax bands because of individual disaggregation. That means, therefore, that tax credits uniquely bridge the gap between family size and family income in a way that has transformed—transformed—the life chances of hundreds of thousands of children and thousands of lone parents who, as a result of those tax credits, now see their take-home pay doubled and that work pays.
My Lords, I am grateful to my noble friend. The House will recognise her well earned expertise in this area. The House will appreciate my noble friend’s long-standing commitment both on the Back Benches and at this Dispatch Box with regard to these issues. Her testimony on this matter is therefore to be taken seriously by the whole House.
My Lords, the recipient should not be penalised and the ombudsman identifies what the Revenue must do to improve its performance. As I have indicated, we responded positively to the report in 2005, and we intend to respond positively to her recommendations for the improvement of the scheme contained in her report published on 9 October.
European Communities (Definition of Treaties) (Partnership and Cooperation Agreement) (Republic of Tajikistan) Order 2007
Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007
Traffic Management Permit Scheme (England) Regulations 2007
Criminal Defence Service (Very High Cost Cases) Regulations 2007
My Lords, I beg to move the four Motions standing in my name on the Order Paper.
Moved, That the order and regulations be referred to a Grand Committee.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Sustainable Communities Bill
Read a third time, and passed.
UK Borders Bill
13: After Clause 16, insert the following new Clause—
“Exemption from detention: vulnerable adults
(1) The Secretary of State shall have a duty to prevent the detention of vulnerable adults.
(2) The Secretary of State shall have a duty to ensure the release of vulnerable adults held in detention.
(3) In this section, “vulnerable adults” shall include those groups that the Secretary of State shall decide, and must include—
(a) victims of torture,(b) pregnant women, and(c) those with serious physical or mental health conditions.”
The noble Lord said: My Lords, I start by paying tribute to the careful and painstaking work of the Joint Committee on Human Rights. It examined and took evidence on the whole subject of the treatment of asylum seekers and drew the attention of Parliament to particular aspects of the Bill. I regret that the Government have accepted few, if any, of its recommendations, just as they rejected virtually all the amendments over which we laboured in Grand Committee.
Amendment No. 13 is designed to implement the recommendation in paragraph 236 from the Joint Committee. This is referred to in section 39 of the Government’s response to the JCHR, to be found in House of Lords Paper 134 of 5 July this year. Sections 36 to 38 and 40 are also relevant to this vexed and complex issue which, as the Minister admitted in Grand Committee on 12 July at col. 273, is a difficult area for government. He went on to say that we as a country should treat decently people who are seeking refuge and who claim to have suffered torture. The noble Lord, Lord West of Spithead, confirmed that in a recent Written Answer that stated:
“We do not condone treatment of asylum seekers that is either humiliating or degrading”.—[Official Report, 10/10/07; col. WA16.].
Every parliamentarian in both Houses will agree with those remarks.
The problem is, as the Joint Committee pointed out, that a wide gap exists between policy and practice over the detention of vulnerable adults, which was revealed by the evidence taken. That is confirmed by the knowledge that many of your Lordships already have concerning individual cases and by the particular cases that I quoted in Grand Committee on 12 July at col. GC 263. I therefore agree with the Joint Committee that the detention of innocent but vulnerable adults continues despite the repeated assurances to the contrary given by Ministers in successive Governments, which I have previously detailed.
On 12 July, the Minister said, at column GC 277, that the appropriate procedures were being followed. That may be so, but, I suspect, only in the sense that allegations and suspicions of previous torture and rape are recorded and passed on up the line with appropriate receipts being given. What happened about the 57 torture reports in the first half of 2006 from the Harmondsworth centre alone, as detailed by Her Majesty’s Inspector of Prisons? Despite the procedures, verification is seldom done. This should happen through references to the Medical Foundation for the Care of Victims of Torture or to other experienced doctors. It appears to happen too seldom or only after excessive delays. A different sample of 56 cases analysed by Medical Justice, which was quoted by my noble friend Lady D’Souza at col. GC 266, was convincing in highlighting the gap between theory and practice.
This amendment is both narrower and wider than the one I moved in Grand Committee. It is narrower because it does not focus on allegations of torture, which may be false or imaginary, and it is wider because it embraces all groups who should objectively be considered as vulnerable. They should include torture survivors, and the Government might like to add words in the Bill or in later guidance concerning prompt verification of torture claims leading to release from detention. The amendment also specifies pregnant women and cases of serious physical or mental ill-health. I have provided for the Secretary of State to add additional categories; for example, women who have suffered gender persecution. The first duty imposed by the amendment is to prevent the detention of the vulnerable. In the nature of things, some mistakes will be made and some vulnerable adults will probably still be detained. There is, therefore, a second duty to ensure their release.
I submit that this is a better and more practical amendment, one that is fully in line with the recommendations of the bipartisan Joint Committee on Human Rights. I urge the Government not to reject it out of hand but to honour the many assurances they have given in the past, so that theory and practice will from now on go hand in hand. The responsibility for closing the existing gap surely rests with the Secretary of State. She can do this either by legislation or by administrative means, provided that the latter actually work and produce the results we all want. The Secretary of State therefore has a choice.
Will the Minister take away my amendment and come back at Third Reading with something that is satisfactory to all? As a refinement perhaps I may suggest that subsection (2) of my amendment reads “to ensure the prompt release of vulnerable adults held in detention”.
Before sitting down, I will just mention Amendment No. 26, which I welcome. It is constructive and could lead to progress but Amendment No. 13 is stronger. I beg to move.
My Lords, I hope my noble friend will be able to give a convincingly reassuring response to the amendment. It relates not only to detention centres but to the whole of our penal policy. Anyone who has had anything to do with prisons knows that they are full of vulnerable people. In fact, by any enlightened interpretation of the word “vulnerable”, I would be prepared to argue that the majority of people in prison are vulnerable in one way or another.
However, we should be focusing our attention on two things: those who should not be in any kind of detention because of their psychiatric or mental condition, or, indeed, those who are the victims of torture. I do not think that it is possible to overestimate the significance, the trauma and the appalling scars for people who have been subjected to torture. They need all possible humanitarian support and assistance, whatever the situation that confronts them.
The other point is to make sure that where people who are in these categories need to be detained, there is appropriate detention which meets their needs. The tragedy is that in some places—perhaps in too many cases—conditions are made worse by the experience of detention and therefore problems accumulate for the future. I hope that my noble friend will take very seriously the issues raised in this amendment and be able to assure us that the Government are thinking hard and constructively about what should be done in this area of policy.
My Lords, I am very grateful to the noble Lord, Lord Hylton, and also to the noble Lord, Lord Judd, for this amendment—which, as each of them pointed out, is yet another of these amendments which from different vectors comes into the heart of the issues with which we are dealing. The reality is that, as the noble Lord, Lord Judd, just noted, most people in this position are in one respect or another vulnerable. Last year, or possibly the year before last, this House attended to what was then the Safeguarding Vulnerable Groups Bill. Elsewhere in society a great deal of attention is now being given to vulnerable people in one situation or another, whether in their own homes, in elderly people’s homes or in hospitals. I wonder whether everybody concerned with detention centres has been CRB-checked and all those kinds of things, as every vicar and every minister of religion who visits old people’s homes is as a matter of course.
We have to realise that a very large proportion of those seeking asylum, if genuine, as many of them are, will have had serious and damaging experiences of detention, even if those fall short of torture—those are difficult distinctions to make. As we noted the day before last when we debated these matters, and as both the noble Lords, Lord Hylton and Lord Judd, said, the likelihood is that, at any rate, most women in that position will have suffered at least severely inappropriate treatment, if not rape, at one point or another, because in many of the areas from which asylum seekers come, ill-treatment of women—rape and still worse things—is basic to the way that a range of militia, ill-disciplined, police forces and the military behave. There are many forms of ill-treatment short of torture.
As the noble Lord, Lord Hylton, noted, there are far too many people in the system whose probably genuine record of torture and ill-treatment has simply not been passed on—not noted or, if noted, not properly recorded and passed on. There are also people who are vulnerable because they have not received the right legal treatment or medical assistance and whose mental health has been affected by the whole process that they have gone through leading to the point of their detention. We will come later to those who have been severely affected through the experience of destitution.
Finally, I was recently given the figure—it will be interesting to know how the Minister responds to it—that more than 50 per cent of those presently in detention centres are there because they are foreign national prisoners awaiting repatriation. I was told that their presence radically affects the tone and feel of detention centres at present, making them more dangerous, less secure places for adults, let alone children, as we heard two days ago, who are already vulnerable. On all those counts, the amendment is critical and I very much look forward to hearing the Minister's reply.
My Lords, I shall speak to Amendment No. 26, which is grouped with, but more limited than, the proposal advanced by the noble Lord, Lord Hylton, and which is supported by the noble Lord, Lord Judd, and the right reverend Prelate. I must congratulate the noble Lord on the persistence with which he has raised the subject most effectively over a great many years. He has extended his concern today to pregnant women and those with serious physical and mental health conditions, for whom I agree that detention is inappropriate, except possibly when they are part of a family. In his reply to a similar amendment moved in Committee, the Minister acknowledged that a history of torture would normally make it inappropriate to detain the victim, other than in exceptional circumstances. The Operational Enforcement Manual requires officials to consider a history of torture and physical or mental ill health as factors against detention without going as far as prohibiting it altogether, but specifically requiring a separate decision to detain, not merely a consideration of the matter as part of the examination of the application, as has sometimes happened in the past.
The difficulty is that, as the Minister hinted in our previous discussion, some people make false allegations of torture in the expectation that it may reinforce their claim for asylum. As we noted before, it appears from the reports of the chief inspector on Yarl’s Wood, Dungavel, Campsfield House and Harmondsworth that they all completed the Form 35 letters which report the allegations of torture to the case holder, but then there was a lack of feedback from the case holder to the management of the IRC on the further action that should be taken. The Minister agreed that that issue needed to be looked at and addressed. Our Amendment No. 26 suggests a way in which that can be done.
I am grateful to the Minister for his letter of 9 October in which he says that, following the review of procedures on Rule 35 of the Detention Centre Rules, a central log of Rule 35 letters should be kept at every immigration and removal centre, and that BIA staff have been reminded to acknowledge the letters and to take them,
“into account in deciding whether detention should be maintained”.
I am asking that they go further and report on the specific action they take, which might include not only a decision to continue detention or order release but a decision to call for further medical reports on the asylum seeker concerned.
I also thank the Minister for the very interesting figures which he sent me on the number of allegations of torture reported in Rule 35 letters between January and September 2007. There were 968 in total, of which 335 came from Oakington and 288 from Yarl’s Wood—the two establishments from which the largest number of allegations of torture arose. The table does not tell us the number of cases in which it was ordered that the person should be released because the allegations were credible or whether in any cases there were further investigations by independent medical officers to verify or confute the claims that were made.
I expect that the Minister will say in reply to my amendment that this matter belongs in the Operational Enforcement Manual rather than on the statute book, but is that a real answer when the chief inspector’s recommendations have been so persistently ignored? As your Lordships are aware, the chief inspector has drawn attention to the failure in all immigration and removal centres to respond radically to the Rule 35 letters. It must be extremely exasperating for her to get no action from the BIA on a matter as sensitive as this. It is certainly disturbing to us as well.
As for other categories of vulnerable people, the list in the noble Lord’s amendment is not exclusive. Mothers with small children are not well looked after in Yarl’s Wood, where the staff have no special training and they do not keep stocks of the requirements of these mothers. The right answer seems to be to consider in every case whether there is a valid reason for detention and always to weigh that against the personal circumstances of the applicant.
My Lords, although my noble friend Lady Anelay said in Committee that she had some sympathy with these amendments, I think she also drew attention to the difficulties they could raise. It is clear that no one expects anything but the best possible care of people in detention and that they should receive medical advice and help should they need it, but there has been a hint from those who are perhaps more cynically inclined that such measures could be used against the proper concerns that people have. While we have sympathy with this amendment, it would be helpful to hear the Minister’s response on how he feels the matter can be dealt with. We have concerns about the amendments and the way in which they are drafted.
My Lords, I support my noble friend on this amendment, but first I should like to put a question to the Minister: are the Government over-reliant on evidence from the voluntary organisations? I shall quote from a statement that he will remember was made by Michael Fisher, the former manager of the asylum screening unit in Croydon, dated 10 March 2006:
“Any person who has an appointment with the Medical Foundation or a medical report from that organisation which confirms that they are probably a victim of torture will not be detained, save in very exceptional circumstances”.
I wonder if the noble Lord could update the House on the extent to which we are dependent on single evidence organisations, and to what extent do the Government make their own investigations?
My Lords, there can be few people in this country who are not 100 per cent sympathetic with what the noble Lord, Lord Hylton, has said in moving this amendment. The problem, of course, is how to get there. As we go through the Bill, it seems that what the noble Lord, Lord Judd, has called the gap between policy and practice is the basic problem that arises over and over again—and here I am talking about detention centres. When the Minister replies, I hope that he will be able to tell us how the Government are trying to narrow that gap because this should not be allowed to continue without trying to resolve it.
I cannot see how Amendment No. 13 would work because the Secretary of State first has a duty to prevent detention and then to seek prompt release. The second subsection should apply if he has failed to secure prompt release. We should be discussing not the wording of the amendment but what the noble Lord is trying to achieve, and that is something that I most certainly support.
My Lords, I am grateful to all the contributors to this debate. These discussions are always enlivened when the contributors include the right reverend Prelate the Bishop of Winchester, my noble friend Lord Judd, the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, because they bring a wealth of concern, knowledge and experience to the issue. I was impressed by a point made by my noble friend Lord Judd and repeated by the noble Baroness, Lady Carnegy of Lour, that the nub of the issue is the gap between policy and practice. In other words, that to which we aspire and what on occasion takes place in one of the institutions, which can fall far short of our policy objective. Our role as a Government, of course, is to focus our attention on and narrow that gap. I am grateful to all those whose care and concern keep us up to the high aspiration that we have set out in terms of policy, and translating that policy into effective, humane and sensitive practice, because this is a very difficult area.
Having said that, I do not see a need to depart from the position we adopted in Grand Committee. This amendment seeks to create a blanket exemption from immigration detention for vulnerable adults who must include torture victims, pregnant women and those with serious physical or mental health conditions. The noble Baroness, Lady Hanham, also said that this is a difficult area, one in which we aspire to provide the best of care, but we have to have firm and clear rules in position and ensure that there can be no abuses of the system. That, in essence, is our position as a Government. I shall go through some of the issues raised in the debate because I believe that they demand to be dealt with seriously.
The noble Lord, Lord Hylton, made it clear that he had tabled a similar amendment in Committee covering just torture victims. At that stage I set out at length why we could not accept such a blanket exemption from detention. That position has not changed, and we cannot accept this new amendment, which it could fairly be argued goes even further. As I said during the debate in Committee, our stated policy and published guidance makes it clear that a history of torture is one of the factors that must be taken into account in deciding whether to detain a person and would normally render the person concerned unsuitable for detention other than in exceptional circumstances. Independent evidence of torture will weigh heavily against detaining an individual.
In Committee I set out examples of the sort of circumstances in which a person who may be a victim of torture, or at least claims to be, might be detained. It is worth repeating them. Detention may be appropriate for reasons of public protection in the case of convicted criminals. The person concerned might be a persistent absconder. Detention might be appropriate in the case of a person who is to be returned to a third country for consideration of their asylum claim. Most commonly, it is likely to be appropriate in the case of persons who have no lawful basis to remain in the United Kingdom and whose removal is to be enforced. Amendment No. 13 would remove completely our ability to detain in these or other appropriate cases. That is not something that sensible immigration control can accept.
Stated policy and published guidance makes it clear that pregnant women should not normally be detained. The exception to that general rule is where there is a clear prospect of early removal and medical advice does not suggest confinement before then. In addition, pregnant women of 24 weeks and above are excluded from detention as part of the fast-track asylum process. In the case of women detained during the latter stages of their pregnancy we are always guided by medical advice on the issue of fitness to fly, which would be a key factor in deciding whether removal could proceed and thus whether detention should be maintained. Pregnant women who are detained have access to the normal range of healthcare services, including visiting midwives and health visitors. This is a perfectly sensible and reasonable approach to the detention of pregnant women. It would be nonsense if women were barred totally from being detained at any point during the entire period of a pregnancy, as the amendment would require.
In the case of people with serious physical or mental health conditions, we already make it clear that a history of physical or mental ill health will be a factor arguing against detention. Individuals with a particularly serious physical or mental health condition are excluded from the detained fast track and would not normally be considered suitable for detention in any other circumstances. Detained individuals who suffer from physical or mental health conditions have access to good-quality primary healthcare services within removal centres, including in-patient facilities in some centres, and access to secondary healthcare including mental health services.
More generally, all cases are considered on their individual merits, and factors arguing either for or against detention must be taken into account in deciding whether to authorise that detention. That covers those who claim to have been the victims of torture, pregnant women and people with physical or mental health difficulties. This is a sensible position to adopt, allowing for a flexible and appropriate response to individual cases. The amendment would remove that degree of necessary flexibility and create a potentially significant gap in our ability to ensure and enforce compliance with immigration laws. It would also be likely to provide a fruitful ground for costly legal challenges designed further to frustrate or delay removal from the United Kingdom. Furthermore, the amendment would be a serious obstacle to the quite proper use of detention in appropriate cases and would therefore weaken our ability to maintain an effective immigration control system.
I turn to Amendment No. 26, moved by the noble Lord, Lord Avebury. I appreciate the concerns that he and others have expressed over issues of this kind, but the amendment is not necessary. As I have made clear, it is already the case that a history of torture is one of the factors that must be taken into account in deciding whether to authorise or maintain an individual’s detention. The system under Rule 35 of the Detention Centre Rules of reporting claims or concerns about a person having been a victim of torture is intended in effect as a safety measure to ensure that such issues, where they are not previously known, can be taken into account in deciding whether to maintain detention. In the vast majority of cases, the individuals concerned will either be at the end of the process facing removal and claims to have been tortured will already have been considered, or they will be in the fast-track asylum process and can be expected to make their claim to have been tortured as part of that process.
Existing guidance to agency staff requires them to acknowledge receipt of an allegation of torture report from a removal centre doctor. It is important that the doctor should know that the report has been received by the relevant agency staff and I agree that this should be done promptly. It may be that the response to the doctor should go beyond a simple acknowledgement. The agency will look at the current guidance to see what more could be said, subject to any issue of confidentiality. For example, the response could indicate to the doctor whether the information about the claim of torture is already known to the BIA and has been considered or whether it is being considered as part of the individual’s asylum application. The guidance should also make clear the need for a prompt response to the doctor’s report. I have explained why we cannot accept Amendment No. 13 and I hope that the commitment to review the relevant guidance to staff will meet, at least in part, the concerns that lie behind Amendment No. 26.
Some specific questions were asked during this debate and I shall try to respond to them. The noble Lord, Lord Avebury, drew attention to some statistics that I released during an earlier discussion. I think that he wanted some idea of how many of those who are detained are subsequently released for a referral to the Medical Foundation. From 1 April 2006 to 31 March of this year, we detained through DFT and NSA processes 4,295 individuals, of whom 156, or 3.63 per cent, were released for a Medical Foundation referral. That gives some data in response to the noble Lord’s question. I am not sure whether it adds much, but I thought that I should put it into the public domain, because it underlines the point that the referral process is made use of.
The right reverend Prelate the Bishop of Winchester made a couple of valid and valuable points about CRB checks and the impact of foreign national prisoners on this part of our detention estate. I understand why he raised those points and, like everyone else, I share his concerns. All removal centre staff have to be CRB checked to an enhanced level—the very highest level of checking. That is absolutely appropriate, as we would not want any potential for abuse in the centres. The checks are very thorough and go a long way towards eliminating potential problems. High numbers of ex-foreign national prisoners have of course had an impact on the immigration detention estate in terms of additional challenges for the security and control of establishments. However, the individuals concerned are risk-assessed to ensure that they are allocated to appropriate centres, and centre staff are alert to the additional risks and the impact on other detainees. I recently visited Tinsley House at Gatwick, where I asked the very question that the right reverend Prelate raised. In that establishment, there were not, as I understood it, any problems presenting, although staff rightly have to be sensitive to the issues that may arise.
The noble Lord, Lord Avebury, asked whether staff have any particular training to deal with mothers with young children. Staff at centres that may hold mothers with young children are trained to deal with the issues that may arise. The healthcare staff, including visiting midwives and health visitors, are particularly alert to the relevant issues.
My Lords, in the case of Janipher Maseko, staff were not properly trained. They did not have breast pumps, for example, which enable lactating mothers to express milk from their breasts. That was a serious omission, considering that it causes considerable pain, as the Minister may be aware.
My Lords, I am aware of that; personal experience is a great teacher. I understand the noble Lord’s point.
The noble Baroness, Lady Carnegy, reminded us of the gap between policy and practice. Staff are intensively trained. Border and Immigration Agency workers who handle cases in this field receive instructions on dealing sensitively with asylum applicants who claim to have been tortured or raped. It is an element of the interview skills module of caseworkers who deal with cases under the new asylum model procedures. The case-owner foundation training programme is 55 days long and encompasses training on all aspects of considering an asylum claim, including five days of interviewing skills training and three days of advocacy training. During the workbook element of the course, where case owners receive the greater part of the legal knowledge that they require, medical and torture issues are considered, and case owners are made aware of asylum policy and other process instructions. Case owners receive instructions relating to torture and medical issues. The Medical Foundation features in several workbooks as an important element of that training process, which is reinforced during the five-day interview training.
The noble Earl, Lord Sandwich, asked whether the Government are over-reliant on evidence from NGOs and the extent to which they carry out their own investigations. All detainees are health-screened on arrival at medical centres. Removal centre doctors are required to report to the BIA on any case where concern is felt that the person concerned may have been tortured. We are not over-reliant on NGOs; there is an appropriate level of involvement. We seek to ensure that any allegations of mistreatment, torture and abuse are independently verified wherever possible.
I recognise that this is a difficult and sensitive area. I acknowledge, too, that we aspire to do more, but we have made much progress in that general direction. It is right that we be held to account and that we focus attention on these issues in important debates such as this. However, a lot of progress is being made. I am most grateful to noble Lords for the care and concern with which they have approached the issue.
My Lords, I thank all noble Lords who have spoken on the amendments. I was encouraged by the general tone of the remarks. I express my particular gratitude to the right reverend Prelate the Bishop of Winchester, first, for adding his name to my amendment and, secondly, for mentioning the urgent question of the foreign prisoners currently in detention centres. The introduction of a category of people who have never been held in those centres before has caused very considerable problems for detention and removal centres. I very much hope that we shall not continue for very long to hold foreign prisoners whose normal prison sentences have finished. I know that a great deal of work is going on to remove them promptly at the end of their sentences. I have heard that the number of staff working in this area has been increased by a factor of 20. That shows what can be done sometimes when there is sufficient governmental will.
I was encouraged, too, by the Minister saying that the intention is to narrow the gap between policy and practice. I should like that gap to be completely closed—and I make a couple of suggestions on how that might be done. First, much more use might be made of reporting conditions and even tagging of people who might otherwise be detained. Secondly, verification of allegations of torture and rape is fundamental to this issue. I was grateful to my noble friend Lord Sandwich for emphasising that. It is the case holder who really needs to act, and noble Lords will appreciate that the case holder is not normally at the detention centre—he is somewhere else, such as Croydon or Glasgow. Therefore there is a remoteness between the centres and the case holders. I hope that the Government are aware of that.
The situation has been most unsatisfactory for many years, which is why we need the gap between policy and practice completely closed. In this relatively thinly populated House and without the support of either of the main opposition parties, I do not intend to press this amendment to a Division, but I reserve the right to return to it at Third Reading and shall take advice on whether a new amendment could be devised that might get underneath the radar. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Support for failed asylum-seekers]:
14: Clause 17, page 10, line 36, leave out subsections (1) to (6) and insert—
“(1) In section 94(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation) for the definition of “asylum-seeker” substitute—
““asylum-seeker” means a person—
(a) who is at least 18 years old,(b) who has made a claim for asylum at a place designated by the Secretary of State,(c) whose claim has been recorded by the Secretary of State,(d) who remains in the United Kingdom following the making of that claim for asylum, and(e) who is subject to immigration control but does not currently have leave to enter or remain;”.(2) In paragraph 17(1) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (interpretation), for the definition of “asylum-seeker” substitute—
““asylum-seeker” means a person—
(a) who is at least 18 years old,(b) who has made a claim for asylum at a place designated by the Secretary of State,(c) whose claim has been recorded by the Secretary of State,(d) who remains in the United Kingdom following the making of that claim for asylum, and(e) who is subject to immigration control but does not currently have leave to enter or remain,”.(3) The following provisions are repealed—
(a) subsections (2) to (4) of section 4 of the Immigration and Asylum Act 1999;(b) subsections (3) to (6), (8) and (9) of section 94 of the Immigration and Asylum Act 1999;(c) paragraphs 6, 7A and sub-paragraphs (2) and (3) of paragraph 17 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002; and(d) section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (failed asylum seekers: withdrawal of support).”
The right reverend Prelate said: My Lords, I seek to persuade noble Lords of the immense benefit that the Bill could provide for all those involved in the asylum system, were Clause 17 to be extended in its scope. We come to the issue of destitution, which is dealt with also by Amendments Nos. 15 and 17. I welcome the proposals in the clause providing for support during the period of appeal for an asylum seeker, but much more needs to be done. The amendment would fulfil the recommendations of the Joint Committee on Human Rights in paragraph 1.36 of its report of 14 May to provide support for all recorded and detailed asylum seekers who have not yet been removed. If we were to go down this line, it would at a stroke remove much of the scandal of destitution which so mars this area of concern. We are grateful to the Refugee Council and the Still Human Still Here coalition of groups and bodies for their persistence in seeking to persuade us to move in this direction.
Whatever their views more generally on immigration and asylum issues, few believe that destitution is an appropriate way to deal with anyone in a civilised society, yet that is the result of our present system, which is why it cannot be described as robust but fair. People in Leeds speak to me of the increasing number of rough sleepers among asylum seekers, who add to the homeless pressure at places such as St George’s Crypt in Leeds and rely on food parcels from organisations such as Positive Action for Refugees and Asylum Seekers and a host of small organisations which have developed in our cities to provide basic necessities for people. I worked in the South Yorkshire coalfields during the miners’ strike and saw the damaging effect of denying families and individuals basic—not generous—support, and I now find that replicated on the streets and in the communities of Leeds.
This amendment does not dispute in any way the right of Government to control their borders nor the right of Government to return those without protection needs, but it disputes any moral right to use destitution, deliberately or not, as a way to influence and force people to leave or to disappear. That takes us to the next issue. The present system is highly ineffective. We simply lose track of people altogether. They disappear into a twilight world, sleeping on the floors of family members or of friends. Their children no longer go to school and therefore are deprived of the benefits which they ought to have. To provide basic healthcare and benefits would establish a far more orderly, effective and humane asylum system. Amnesty International’s report, Down and Out in London, strongly suggests that this would lead to an increase in those enabled to return to their home countries because there would be so much more clarity about where those people were.
The Joseph Rowntree Foundation recently published its report on destitution in Leeds, Moving On—From Destitution to Contribution. Kate Adie, who chaired the inquiry, Courtenay Griffiths QC, Sayeeda Warsi and their colleagues advocated an end to destitution and the establishment of a right to work for refused asylum seekers. This last point is dealt with in Amendment No. 18. Kate Adie and her colleagues speak of the erosion of human dignity and the will to survive. They quote a senior nurse saying:
“It compromises the very ethics of the NHS to refuse care”.
They quote an asylum seeker saying:
“At night I can’t sleep. I see my life in danger ... I do not have any feeling in my body. When I see the past I see death. When I see the present I see no hope. If I kill myself everything will finish”.
That is the situation which faces an increasing number of people in our society and our cities and which we have it in our power to deal with.
Speaking to some of the Rowntree team, I was struck by the effect that their research was having on them. Any amount of statistical information cannot make up for the actual damage being done— psychologically, sometimes physically, and in mental health—to people in Leeds and in many other cities in this country. This needs a cross-party solution, for no one can believe that the present situation is tolerable.
It is true that Section 4 hard case provision in theory exists. It is difficult to access, and only a tiny minority of asylum seekers ever achieve it. Most of them do not know about it. It would be far more straightforward and effective to continue Section 95 provision to keep people in the system. Adie’s report comments:
“Whatever the theoretical justice of the Section 4 system, it has demonstrably failed to do what it was intended to do”.
Adie and her colleagues speak of three principles, and those are also taken up in the Joint Committee report. First, there is the need for the asylum process to keep people in the system and not drive them out of it. Secondly, there is the need for asylum seekers to contribute to host communities wherever possible, rather than being a burden on them, which is why the report advocates jobseeking and taxpaying by asylum seekers. Thirdly, there is the need to ensure that all asylum seekers have the basic necessities of life, which is, I submit, a requirement of any part of the legislation of any society.
The amendment would provide the first and the third of those principles. Adie pleads that,
“political leaders have the courage to acknowledge this and act accordingly”.
The amendment gives us the opportunity to do exactly that. I beg to move.
My Lords, if this amendment is agreed to, I cannot call Amendment No. 17.
My Lords, the humanity, logic and relevance of the case made by the right reverend Prelate the Bishop of Ripon and Leeds is powerful. It spells out the cause of decency and civilised values in this context. It is good in every sense to find myself positioned behind him.
I shall speak to Amendment No. 15. I studied very carefully our deliberations in Grand Committee, and the response given by my noble friend did not resolve the matters that were raised by the amendments on this issue. In Grand Committee, it was noted that the Joint Committee on Human Rights had welcomed Clause 17 as recognising the right of asylum seekers to receive subsistence support pending the final determination on their claim. However, it was also noted that the Joint Committee had been persuaded by the evidence submitted to it that the Government had been practising a deliberate policy of destitution in relation to asylum seeking and that the Joint Committee had found that policy clearly unacceptable. In keeping with the recommendation of the Joint Committee, this amendment seeks to ensure that, in line with Article 3 of the European Convention on Human Rights, asylum seekers will always be treated in future with common humanity, as indeed the common law requires.
My noble friend has yet to tell the House how that objective will be fulfilled without the amendments. I fervently hope that he will be able to do so today when he replies to the more comprehensive proposal that has been put with so much commitment both in Committee and today by the right reverend Prelate.
My Lords, from these Benches, I shall speak to Amendment No. 17, which is in the same group as Amendment No. 14. I remind the House that on 26 March we celebrated 200 years since the end of the slave trade and the work of people such as William Wilberforce and Thomas Clarkson. We applauded our own humanity in restoring dignity to those people who had in slavery suffered in such a terrible way. We said, “What good people we were 200 years ago”.
A few weeks ago, I was in Parliament Square when the statue of Nelson Mandela was unveiled. He was there, and how we celebrated with him what had happened in South Africa because of his leadership and sacrifice. With the end of apartheid, dignity had been restored. We celebrated and applauded then, yet today we are asked to continue a measure that undermines not only the dignity but often the very survival of those who arrive in the United Kingdom. I am talking about Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act, which is affected by this Bill. As has been said, that Act withdraws all benefits from failed asylum applicants and their families. It was mentioned the other day that this legislation is in total breach of the United Nations Convention on the Rights of the Child. Article 24 guarantees every child health provision, but that is to be withdrawn. Article 26 gives every child a right to social security, but that is breached. Article 28 on education is breached, and there are other breaches as well. If we are to support all the obligations and opportunities of the United Nations Convention on the Rights of the Child, we must vote for these amendments.
There were three trial areas, involving 116 families and 219 children. Every local authority involved said that the trial was impossible because it was in contravention of the children Acts that support and defend children. We had a glimmer of light—I thought that it would be more than a glimmer—when the three pilot areas were withdrawn. That was an admission that they failed. Where Section 9 had been tried, it failed. We read in the evaluation report that families went into hiding rather than be deported to their countries of origin. I mentioned the other day the countries to which they would be deported. Pakistan might be okay. Then there were Somalia, Zimbabwe, the Democratic Republic of Congo, Angola and Iran. The largest number of applicants came from those countries. This proposal tries to force people back into those troubled areas. That is totally immoral. Little wonder that families go into hiding.
The provision tries to force people to leave by the cruellest of methods. The physical consequences such as food, shelter, health and benefits being withdrawn have already been mentioned. There is also the psychological damage. Imagine that you are a child in this darkest of situations. The Government say, “We recognise that, and we might get a new caseworker project going”. There is the Hotham project in Australia, and such projects must be encouraged. At the moment, the Bill is the legislation of the bully and is totally unworthy of a place in our legislation. Is there any other Act whose consequences are destitution?
Over the years, we have tried to withdraw from that. We have listened to various political statements and policies, and we have tried to lift children and families to new levels of hope and prosperity. But Section 9 does completely the opposite. Some say that this is a political argument. It is more than that; it is one of the great moral arguments of our time. Are we going to support legislation whose end is destitution?
Slavery was wrong and it was abolished. Apartheid was wrong and it was abolished. This section also is wrong and the Government must today, or possibly at Third Reading, come back with a proposal that removes this prospect of destitution from our statute book. The Government might say “Yes, it is there, but it will never be used—it is just a final deterrent”. We might as well say, “Let’s keep slavery, in case it is needed some day; let’s keep apartheid in case it is needed some day”. As those were wrong, so this is wrong. Section 9 is a scar, an ugly blemish, on the legislation of the United Kingdom. I suggest that today we put it finally to rest.
I know that my Benches will support this amendment and, unless the Minister gives us an assurance, we intend to test the feeling of the House and put the amendment to the vote at the end of this debate. It is not the time for anyone to sit on their hands. You cannot be a spectator. You must say either that we are for this sort of destitution clause or that we are against it. I say to those who up until now thought that they could just look on, can you really look on when you see children and others forced into this terrible state of destitution? I passionately urge noble Lords to support these amendments and to remove this blot from the statute book of the United Kingdom.
I shall speak to Amendment No. 17, to which my name is added, following the passionate speech of the noble Lord, Lord Roberts. It is deeply lamentable that in this country we can make families destitute by removing all support for them. Yes, there are means—complex means—by which social services can intervene, which put an additional burden on them, but this process of gradually withdrawing support for families puts those people under immense distress. Yet, it is ineffective or hardly effective at all. While 2 per cent of families were being returned by other methods, under this pilot it was raised to 4 per cent. The difference is marginal.
Other options can be used—detention is the most extreme—but the voluntary assisted return programme has been effective. I welcome the Government’s withdrawal of the pilots until now and their statement that they will use this measure very rarely. But look at what happened. Four children were taken into care as a consequence of these pilots; 32 families went underground into who-knows-what housing conditions with no access to healthcare or education. What sort of employment conditions were they subject to? It is hard to reconcile the Government’s desire to raise the status of social workers and demonstrate our respect for them, while not attending to the very strongly expressed concerns of the Association of Directors of Social Services and the whole of the social work profession about this measure.
The honourable Diane Abbott MP said in an earlier debate on this subject that the Government,
“wholly underestimates the desperation of the people with whom we are dealing”—[Official Report, Commons, 17/12/03; col. 1645.]
Earl Russell echoed that. There seems to be a lack of understanding. On Monday this week, representatives of families subject to this measure visited your Lordships’ House and spoke to some Members of Parliament. I welcome the fact that we heard that they had sensitive treatment from the case workers who were dealing with them. At least one of them reported that.
However, in 10 per cent of those families, the mothers were pregnant. I heard from a young woman with four siblings that her mother was pregnant with twins. They were born at four-and-a-half months—one died and one survived. Why are we putting families through such a mill to achieve so little? One family member reported that her mother was asked, “What will you do if your children are separated from you?”. The mother said, of course, “I would rather die than let that happen”.
The Leader of the Opposition recently spoke to his party conference about the family. He said:
“You know the best welfare system of all, it’s called the family. If you think about it, what’s the best organisation at bringing up children, at helping us with the right values, helping us get on with life, looking after us if we are sick of disabled, caring for the elderly? It’s the family. And in this world of unease as well as freedom we need to do more to support the family, and again the old politics are failing. Look at Britain today: one in four children brought up with an absent father, the highest rate of family breakdown in Europe, and I just don't believe we can walk on by from the evidence that’s in front of us”.
Yes, indeed, we should be supporting families, not seeking to undermine them. I heard from the young woman on Monday that her mother was rendered barely able to care for her five children because of the distress that this measure had put her through.
I applaud the steps that the Government are taking to improve support for case workers and I recognise that the Government are trying to introduce tight supervision of this measure. I welcome the fact—and I would like the Minister to confirm—that the Government intend only to use this measure in a handful of cases. But look at the culture that this comes out of—including the case of Victoria Climbié, the history of abuse of children in children’s homes and the turnover of social workers. We do not have in this country a solid base of confidence that we treat our families well and that we treat our vulnerable families in the right sort of way.
In that context I tremble to think of giving case managers this power. I very much respect the Minister and his experience as a social worker and leader of a local authority. Surely he knows that Section 9 serves no one’s interests and can only harm children. I beg him to accept Amendment No. 17.
My Lords, passion comes in many styles; whether it is the style of the noble Earl or that of the noble Lord, Lord Roberts, it is appropriately directed here, because destitution as an instrument of policy is not acceptable. My hope is that the amendment of my colleague, the right reverend Prelate the Bishop of Ripon and Leeds, will be carried—if not, then Amendments Nos. 15 or 17 should be carried. One of them has to be carried or there has be a cast-iron assurance from the Minister that a better amendment meeting this absolute need will be brought forward at Third Reading.
The Still Human Still Here coalition offers a figure of 280,000 people who are caught in this destitution trap. If that is even remotely true it is a horrifying figure. Whether the information comes from the Rowntree work in Leeds, the Refugee Action leaflet or experience on the ground—some of us have met such people—the facts are the same. A couple of years ago I spoke with a very experienced priest of ours in Southampton who has worked in a number of the most deprived areas of this country in a lifetime’s ministry. He had recently been taken to a house in Southampton where destitute asylum seekers were, as it were, “hot bedding” in conditions which he said he had never seen in a lifetime’s ordained ministry in this country. Water was coming through the roof and there were appalling conditions. It is worth saying that a number of such people are in this position because of previous failures in the system—loss of documents, poor or inappropriate legal advice, flawed decision-making, and failures in the education and training of adjudicators.
It then needs to be said—as has been said by the noble Earl and by my colleague—that this instrument is simply ineffective. Most people who are subject to it do not, as a matter of fact, react to being removed or leaving the country by getting themselves on track. The large majority cannot: they do not have the papers; they have other difficulties; or they will not because, for very good reason, they are afraid to do so. The result, as my colleague the right reverend Prelate said, is that they are pushed into a twilight world, into poverty or into ill-health with little or no access to medical care except at points of crisis. They are also pushed into crime; they become vulnerable to trafficking; and, as the noble Lord, Lord Judd, pointed out on Tuesday, as he has done on a number of occasions, they are a further driver to the kinds of resentment that are utterly contrary to the Government’s cohesion agenda. Those questions have to be taken into account before any attempt is made to justify destitution as an instrument of policy.
My Lords, the Government have already acknowledged that this is bad legislation. They acknowledged that when they accepted the amendment during the 2006 Act to repeal Section 9 following widespread opposition inside and outside Parliament. We have been here many times and it is disgraceful that we are still discussing this matter, even after the pilot showed that Section 9 was not working in the Government’s favour. As with reporting restrictions and other measures, in the words of the Refugee Council, this is an “inhumane and ineffective” policy and it is in breach of the UN convention. It will only have the opposite effect to that intended, which is to cause fear and drive more children and young people underground or into destitution, as many noble Lords have said. There have been countless reports by the churches and voluntary organisations bearing that out.
The Minister referred to this section in Grand Committee as,
“a tool in the armoury”—[Official Report, 18/7/07; col. GC 65.]—
which implies that the Government are doing battle with asylum seekers in order to meet their targets. That is somewhat in contrast to the professed policy under the new code, which we discussed on Tuesday, to provide proper protection and keep children and others safe from harm.
My Lords, I shall not continue this discussion. Of course, we are all extremely worried—in fact, we are more than worried; we are horrified—at the effect that the policy has had, which I do not think was expected or anticipated. I want to ask the Minister one question relating to Clause 17(6), which states:
“This section shall be treated as always having had effect”.
We do not legislate retrospectively. This clause is welcome; it is doing something that everyone has said is good, but why is it drafted in this way? I do not remember seeing such a subsection in legislation. The clause should be treated as “always having had effect”—that is, turning it into retrospective legislation. Can the Minister tell us why it is drafted in this way? It is rather worrying.
My Lords, the noble Earl, Lord Sandwich, reminded us that in the proceedings on the 2006 Act we persuaded the Government to accept an amendment which allowed them to repeal by order Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. That was because, as the noble Earl has also said, there was almost universal opposition to this provision from churches, local authorities, professional bodies and voluntary organisations, which now includes the Refugee Children’s Consortium, the Association of Directors of Social Services, the British Association of Social Workers, the Joseph Rowntree Charitable Trust, the Joint Committee on Human Rights and many others.
At that time, the Government said that a final decision on repeal would be taken when they had the results of the pilots, to which reference has been made. The clear inference was that, if the pilots failed—as they have, to universal acknowledgement—the power to repeal would then be used. But when the Minister, the noble Lord, Lord Bassam, responded to this amendment in Grand Committee, he said that it was an important part of the process—a “tool in the armoury”, as the noble Earl, Lord Sandwich, reminded us. He went on to say, correctly, that that analogy might not be attractive to all those involved in the debate but that there might be many cases—he could not say how many; I shall come to that in a second—to which we must apply Section 9.
The Minister also complained in Grand Committee about the length of time that we took in raising these amendments. He said that he had heard most of the arguments before and declared that his mind had not shifted on the issue. I do not know what it would take to shift his mind when he is obviously out of step with the vast majority of informed opinion and with the normal principles of humanity and morality.
To pursue my noble friend’s line of argument, the Minister probably would not like to see torture used against families who stubbornly refuse to co-operate in their removal. However, to our way of thinking, making people destitute and separating them from their children is a form of torture, and a particularly nasty one at that. If, as the Minister said, in the end we are talking about only one, two, three or four cases a year where, for reasons that he could not or would not explain, it is impossible to remove the families, as happens with the vast majority of those who refuse to co-operate, we simply cannot understand the Government’s attitude.
Nor, as has been said, has the continued presence of Section 9 on the statute book achieved the objective of encouraging people to take up voluntary-assisted returns when their claims fail. We do not know whether any families have been removed under Section 9 since the end of December 2005, when the pilots came to an end, but inquiries that I have made seem to indicate that such removals have been in total abeyance. Therefore, the presence of the measure on the statute book for the past two years has not done anything towards improving the take-up rate of voluntary repatriation.
In any case, we share the views of the RCC that engaging, rather than punishing, families, as with the Hotham Mission asylum seeker project in Australia, is more likely to ensure that protection needs are met and that returns are safe and sustainable. In this model, which has been mentioned by my noble friend, when rights of appeal are exhausted, the role of the caseworker is to provide practical and emotional support for the family in considering their options and in planning their possible return. Such a model achieves a high level of voluntary repatriation, which demonstrates that preparing, supporting and empowering asylum seekers at the end of the process pays dividends.
It may interest the Minister to know that the Nepali failed asylum seeker, whom I mentioned in Committee on 18 July, departed voluntarily with his wife and child on 22 August, having been supported by his cousin for many months and with no help whatever from the IOM or the Government in meeting the cost of his fares, as I reported to Mr Byrne. The only contact that that family had with the immigration authorities was when Mr G had to report to them every single week. That put an additional financial burden on the family because he had to pay his own fares when travelling to Croydon and back home again; nor was any support or help offered by those in coming to their decision.
We continue to oppose Section 9, as we have done ever since it was first introduced, and we make no apology for demanding its repeal yet again. We deplore the use of family destitution as a means of enforcing immigration control, placing children’s welfare, health and development at risk. We condemn the threat to separate children from their parents and families, and we deplore the uncertainty and confusion caused by the continuance of this obnoxious legislation. I appeal to your Lordships to sweep it into the dustbin, where it belongs.
My Lords, I fully recognise that a great deal of passion and a little anger have been expressed during the debate. I also recognise that Members of your Lordships’ House deal with this issue with great seriousness and that they have consulted and have been briefed widely by many aid and support organisations which help those who seek refuge in our country. If the system, in extension, were as has been described today and during the course of our deliberations on this part of the Bill, then I too would probably stand with those who make a case for the repeal of this part of our legislation. However, I do not believe that to be the case.
In my work in this area I have seen our officials and those who deal with these difficult issues approach their work with seriousness and sensitivity. That does not mean, as I said before, that absolutely everything is perfect in this policy area and that there are not hard issues and hard cases, because there certainly are, as the evidence suggests. But we have to maintain fair and effective procedures and we have to maintain a system that is robust. Yes, sometimes it produces difficult cases and hard choices.
I shall take some time and care to go through the issues because I believe that they deserve that treatment. I hope that noble Lords, while they may not agree with the Government’s position on this, will at least understand that we give this very serious thought and careful consideration.
Amendments Nos. 14, 15 and 17 seek to extend asylum support to those who have been found to have no need for international protection and who should be taking steps to leave the United Kingdom. A very clear choice is set out in the amendments. Clause 17 as it stands seeks to ensure that an asylum seeker and his dependants will continue to be eligible for asylum support as an asylum seeker, or as the dependant of an asylum seeker, until the end of the immigration appeals process. Clause 17 provides that. Amendments Nos. 14 and 15 would maintain that support, potentially indefinitely, for those who have made an asylum claim, who have had that claim and any appeal rejected and who choose not to leave the United Kingdom.
As I said, I entirely accept that the reasoning behind these amendments is well intentioned. They seek to address a perceived gap in support for those whose asylum claims and appeals have been unsuccessful and who no longer qualify for asylum support. However—this is a very important point—we should not forget that there are already options available for failed asylum seekers who find themselves in this position. There is no reason for people refused asylum to be destitute. They can choose to return home, as it has been found that it is safe for them to return. Those making a voluntary return are eligible to receive the world-leading re-integration assistance that is provided by the International Organisation for Migration on behalf of the Home Office.
My Lords, I accept that in the case of the Nepali failed asylum seeker to which I referred in Grand Committee, he applied to the IOM which was not able to assist him, for reasons that I am sure the Minister would not want me to go into in detail. I have explained all this to Mr Byrne and I have suggested that the IOM rules for helping people who want to return voluntarily should be re-examined because they are not helping everyone.
My Lords, it is recognised that the way in which the International Organisation for Migration works is a very good model indeed. Of course, it may well be that some individuals do not receive the assistance and support that the noble Lord and I would clearly wish. I am grateful to him for drawing that case to our attention. No doubt the correspondence that he is conducting will lead to some further reflection on this. I am grateful to him for undertaking that correspondence. I also make it clear that support is available, under Section 4 of the 1999 Act, for those who are taking all reasonable steps to return home, while that return is being arranged. It is also available where there is some temporary barrier to return.
I do not believe that it is right that United Kingdom taxpayers should be asked to fund, potentially indefinitely, those who have been unwilling to make a voluntary return home. We think it is important to make it clear that failed asylum seekers cannot expect to receive support on the same basis as those still in the asylum process. Section 4 support is intended as a limited and temporary form of support. We acknowledge that there are some needs which cannot be met within the existing Section 4 regime and have now commenced a consultation on draft regulations to meet specified services and facilities which will enable us to give additional support to the most vulnerable receiving Section 4 support, including pregnant women and mothers with children.
The proposed amendment to repeal Section 4(11)(a) would not have the effect of abolishing vouchers, but would instead restrict our ability to provide for specified non-accommodation-related needs for supported individuals, including those who are vulnerable. We could not agree to such an amendment as to do so would undermine the integrity of the system by sending out mixed messages to those expected to leave the UK.
Asylum support is provided as a temporary measure, pending the outcome of the asylum application. To provide support after a negative decision and once the applicant has unsuccessfully exercised his appeal rights could mean that the person would be supported indefinitely at taxpayers' expense. I hope noble Lords are able to see that this is not an option that we can justify nor indeed is it one which I would wish to defend, as it amounts to exploitation of the asylum process in this country.
Subsection (1) of Amendment No. 15 seeks to repeal Section 55 of the Nationality, Asylum and Immigration Act 2002. This provision was originally introduced as part of a wider package of measures aimed at tackling abuse of the asylum system and removing incentives to the making of non-genuine claims for asylum. There are a number of safeguards in Section 55 to protect the vulnerable. Children and their families are excluded from its provisions and it does not prevent the provision of support if it would be a breach of human rights not to provide it. Support is not refused under Section 55 to any person who does not have alternative support available, including overnight shelter, adequate food and basic amenities.
The essential point of Section 55 is that we are not prepared to use taxpayers' money to support those who make speculative asylum claims or who have some alternative support. Section 55 has been effective in tackling this kind of abuse and, to our minds, sends a clear message to those who are simply economic migrants that they will not be supported at public expense. Agency-published quarterly statistics show that less than 1 per cent of cases refused under Section 55 are granted support following reconsideration.
I turn now to Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which all three proposed amendments seek to repeal. Section 9 provides for the withdrawal of support from the principal applicant and his family, whose claim for asylum has been refused and fully determined and whom the Secretary of State certifies that, in her opinion, have failed without reasonable excuse to take reasonable steps to leave the UK voluntarily. There are, however, exceptions and support will remain available, if necessary, in order to avoid a breach of a person's rights under the European Convention on Human Rights. Section 9 is not designed to make families destitute or to split them up but to influence behaviour to ensure co-operation and to incentivise voluntary return to the country of origin before removal is enforced.
In June this year, my honourable friend the Minister of State, Liam Byrne, published the evaluation report on the Section 9 pilot, to which many noble Lords have referred in this debate, which made it clear that the agency does not think that Section 9 is suitable for application on an indiscriminate basis. However, it remains important that we retain a provision to withdraw support from families who wilfully refuse to co-operate with the returns process. We cannot agree to the repeal of Section 9.
During Grand Committee stage, the agency agreed to produce draft guidance for asylum case owners on how it proposes to apply the Section 9 provision in any new asylum cases. Draft guidance is now available, on which the agency will consult, ensuring careful and inclusive discussion. I can make this point clear today: there will be no further implementation of the Section 9 provision until after consultation and publication of the finalised guidance. The agency is working to ensure that the guidance supports the case-specific approach for dealing with asylum applications under the end-to-end system. Specialist case owners are now responsible for managing the claimants and their cases through the whole system, until either removal or integration as a refugee. There is a strong focus on ensuring that earlier steps are taken so that those whose claims are not successful leave the United Kingdom in a timely fashion. Those who have been refused asylum have no legal basis to remain here. It cannot be right to give them false hope that they will be able to stay here after their asylum claim has been fully determined. It is particularly important that families should not give false expectations to children, and to make clear that those refused asylum cannot expect to receive support indefinitely.
Repeal of Section 9 would also give a right of appeal to the asylum support tribunal where asylum support is refused or withdrawn because of the operation of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. Schedule 3 is an important measure to discourage benefit shopping and prevent support to those within specified classes except to the extent necessary to avoid a breach of their rights under the European Convention on Human Rights or Community treaties. This exception already provides an important safeguard to the operation of Schedule 3.
To conclude, the proposed amendments seek to extend asylum support to those who have been found to have no need for international protection and who should be taking steps to leave the United Kingdom. We must, as a Government, maintain the integrity of our asylum system. We have a long and proud tradition of granting asylum and protection to those fleeing persecution and torture, but that tradition must not be abused and exploited. To support indefinitely those who have been found not to need our protection would be to undermine our purpose in protecting the United Kingdom’s borders and our efforts to ensure that those with no right to be in the United Kingdom make arrangements to leave.
A number of other questions were raised in the debate which perhaps I have not dealt with in my main address; I shall deal with some of them as quickly as I can. The right reverend Prelate the Bishop of Ripon and Leeds, in his carefully thought-out comments, observed that he thought that the current system was ineffective because, in its denial of benefit and support, it forced failed asylum seekers underground, making removal harder. We endeavour in every instance to maintain contact through a process of contact management. Support is available under Section 4 to all for whom there is a barrier to leaving the United Kingdom. We make a careful assessment of what those barriers might be and, during that process, support is maintained.
In his passionate address to your Lordships’ House, the noble Lord, Lord Roberts, made a number of assertions suggesting that we were in breach of Articles 3 and 8 of the ECHR. In particular, my mind alighted on his assertion that we were depriving even failed asylum seekers of healthcare and treatment. I am not aware that that is the case. Failed asylum seekers continue to receive immediately necessary health treatment, and children continue to receive healthcare—as they rightly should—through the process of being supported and beyond. Of course, we carefully take account of their educational needs as well. Even in how Section 9 is applied the provision ensures that we undertake a careful risk assessment and consultation with all the relevant agencies when any withdrawal of support is considered. In those circumstances, it cannot be argued persuasively in a court that we are in breach of Articles 3 and 8 as the noble Lord asserted, although I understand the passion of his argument and why he makes it as he does.
The noble Earl, Lord Listowel, asked me to confirm that Section 9 will be used only in a handful of cases. That is obviously the case and my answer is simply yes.
The noble Lord, Lord Avebury, asked in general debate why, in the face of so much opposition, the Government continue with Section 9. As I have said on a number of occasions, there must be a mechanism to stop support for families who have no right to be here and where there is a wilful frustration of the process. I say to noble Lords that, hard though it may seem to consider that that might be the case, even the noble Lord, Lord Avebury, would confirm that there are cases where people wilfully obstruct quite proper processes—processes with many safeguards in place to protect those caught up within the system.
My Lords, of course we do.
The noble Baroness, Lady Carnegy of Lour, drew attention to subsection (6) and asked about the particular purpose of the provision. We always thought that the provision covered asylum seekers for the duration of the in-country appeal, but the Court of Appeal in one case found otherwise. We are of course appealing to the Judicial Committee of the House of Lords on that point. We therefore seek to clarify the issue by confirming the position in Clause 17(6) to cover all cases past and future. The provision is retrospective, but for the benefit of asylum seekers, in that it makes it clear that they have always been entitled to the support described in the clause.
My Lords, would it not be possible to draft that clause in a different way so as not to make legislation retrospective? I do not like the fact that we are doing that. We are always fighting attempts to make retrospective legislation because it is not fair on people, but let us not go into that. I did not really understand the noble Lord’s answer; I do not know if he did. I think he got the information from those who are well-informed. I shall read with interest what he said.
My Lords, the noble Baroness has actually alighted on an important point, and I am grateful to her for drawing it out because it needs to be understood. As I had just described, the clause is drafted as it is to benefit asylum seekers and it is very much in the face of the appeal case that the Judicial Committee is shortly to hear—or is perhaps currently hearing. I am happy to interrogate the noble Baroness’s point, which she is entitled to raise, further, but we are in this case acting entirely properly and in the public interest.
The right reverend Prelate the Bishop of Winchester raised a further point about people being afraid to leave the United Kingdom, even after appeal. Decisions appealed are heard by an independent tribunal. We have a process properly put in place to ensure that the quality of decision making is compliant with the UNHCR. Support is available while people document themselves, as I have made clear throughout this discussion, and we take other reasonable steps to help them to take reasonable steps to leave the United Kingdom. That assistance and support is made available under Section 4. I have heard the criticisms of Section 4, but it is there, it works and we provide that assistance.
I have heard the arguments this afternoon. I am not convinced by the arguments in opposition to Clause 17 and how it operates. I understand the passion of the views expressed about Section 9, but it is applied only in an entirely proportionate and balanced way. We have reflected long and hard on the pilots and, as I have described to your Lordships’ House, we are perfecting guidance as to any potential use of that section in future. Having made all of those points, no doubt noble Lords will wish to express their opinion.
My Lords, I thank the Minister for his characteristic care in responding to the debate and all noble Lords who have taken part.
I am grateful to the Minister for his expressions of sympathy with those who are in most need in this area of our society and of the way in which we try to provide for them. He referred to a perceived gap between need and provision, but there is a real gap between them. I was disappointed that he was unable to suggest any way of coping with the terror, fear and appalling conditions in which a number of people live in this country. They were referred to by the noble Lords, Lord Judd and Lord Roberts, and the right reverend Prelate the Bishop of Winchester. As the noble Lord, Lord Roberts, said, we need to realise how difficult it is for people to return home when their asylum claims have been dismissed. For many, that is not a practical proposition and so they are driven into a twilight world.
This is a matter of common humanity—a phrase used by the noble Lord, Lord Judd—and of the dignity of people and the care of children. I hope that at this point we will make some statement about our desire for work to be done on the Bill to provide basic support for such human beings who are in our society and in our midst.
I have heard the arguments about Section 9 and about how it is key to that concern. As Amendment No. 17 is much shorter than Amendment No. 14—and it seems that it will get to the heart of the matter in a test of the opinion of the House—with reluctance, I beg leave to withdraw Amendment No. 14.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
17: After Clause 17, insert the following new Clause—
“Withdrawal of support: repeal
Section 9 of the Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004 (c. 19) (failed asylum seekers: withdrawal of support) is repealed.”
The noble Lord said: My Lords, it is getting late and this is a massive moral question. Can we in any way justify any action which leads to destitution? In order to find out exactly what our opinion is, I beg to move the amendment and wish to call for a Division of the House.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again after the Statement and the Question for Short Debate.
Moved accordingly, and, on Question, Motion agreed to.
My Lords, I shall now repeat a Statement made in the other place by the Chancellor of the Exchequer. The Statement is as follows:
“Mr Speaker, with permission, I would like to make a Statement on Northern Rock plc.
“As I said in my Written Statement on Monday, Northern Rock got into difficulty following the problems triggered in the US mortgage market which have gone on to affect the financial markets in countries all around the world. In early August, when the markets realised the extent of the problems in the US sub-prime market, they also began to have doubts about the value of other asset-backed securities. Uncertainty over which institutions were exposed and to what extent meant institutions lent to each other at much higher rates, and in some cases stopped lending to each other altogether. The result was a large reduction of money in the market generally and an increase in the cost of borrowing, not just for those with exposure to sub-prime mortgages, but for all institutions.
“These developments have had a global impact affecting major US mortgage lenders, a major French bank and banks in Germany. The availability of credit has increased the past few weeks, so we can be more confident, but we cannot be certain when the current instability will end. Britain entered the global turbulence with a stable economy and a strong banking sector that has experienced rapid growth with well-capitalised balance sheets. British institutions have less direct exposure to sub-prime assets, and our sub-prime market share, at 5 per cent, is much lower than that of the US.
“However, Northern Rock, because of its business model, faced particular problems: it has a large share of Britain’s mortgages, but they are primarily financed through the wholesale markets, including a significant proportion from securitisation. This meant that Northern Rock was particularly vulnerable to the virtual closing of this market over the summer.
“On 14 August, the Financial Services Authority told the Bank and the Treasury about its concerns on Northern Rock and its vulnerability in the current market circumstances. During August it became increasingly clear that Northern Rock was having difficulty getting access to the financing it needed and that the cost of doing so was increasing. The general situation and Northern Rock’s position in particular were monitored on a daily basis. On 5 September, the Bank announced £4 billion of extra support to provide increased liquidity to the wider market. As Northern Rock’s position deteriorated, it became clear that specific support was likely to be needed for it.
“On 13 September, the Governor and the chairman of the FSA recommended that I authorise the Bank to provide special liquidity support, and I agreed because I believed that that was justified. There are clear principles governing such support that are set out in the memorandum of understanding between the Treasury, the Bank and the FSA which was first signed in 1997: such support should be undertaken only where there is a genuine threat to the stability of the financial system and in order to avoid a serious disturbance in the wider economy. That was the case here. The provision of this support was announced on 14 September.
“Although the FSA had assured the public that Northern Rock was solvent and that if depositors wanted to get their money out they could do so, it became clear that further assurance was needed. So on 17 September, again on the advice and with the agreement of the FSA and the Bank of England, I announced that during the current instability in the financial markets, and should it prove necessary, I would put in place arrangements that would guarantee all the existing deposits in Northern Rock. This undertaking was explained and extended on 20 and 21 September.
“The Treasury, the Bank and the FSA continue to work intensively with Northern Rock with a view to helping it resolve the situation. Any future solution must lie with the company. The Government have provided appropriate help, and we will continue to do so. As I reported to the House on Tuesday, I have extended the Government’s guarantee arrangements to all new retail deposits, for which Northern Rock will pay a fee, while the Bank has provided an additional loan facility which replaced that of the lender of last resort. I have today written to the chairmen of the Treasury Select Committee and the Public Accounts Committee setting out more details, and I am publishing this letter and placing a copy in the Library of the House.
“There are clearly lessons to be learnt from what happened to Northern Rock and the wider instability across the world. The responsibility to minimise risks and prevent problems happening in a particular bank lies first and foremost with the directors acting on behalf of its shareholders; that is their clear duty. It is the job of the financial authorities to set the policy and regulatory framework in which institutions and markets work. Let me remind the House of the responsibilities here. As the House knows, the Bank of England has complete independence in monetary policy. Its second core purpose is financial stability, a role that it discharges on a daily basis. The FSA, also independent, is responsible for the supervision of individual firms such as Northern Rock. And because of the importance of the financial system for the stability of the economy as a whole, and the potential impact on the Exchequer in ensuring that stability, the Government are rightly also involved. The Treasury is responsible for the overall legislative framework, and I am accountable to Parliament.
“I believe that it is right that the Bank and the FSA should continue with those responsibilities. This is a model that others around the world are now following. However, we do need to review how the framework has operated and put in place whatever practical improvements are needed. As the FSA has said, it is reviewing for itself its own lessons. I look forward to its conclusions early next year.
“We need to make more reforms to prevent problems happening internationally and in Britain. First, when the Financial Stability Forum reports at the G7 to Finance Ministers in Washington next week, I will urge faster rapid implementation of international agreements on solvency, accelerated work on international standards for regulating liquidity, more transparent information on credit ratings, and action to improve the transparency of off balance-sheet vehicles.
“Secondly, I will propose an IMF and FSF early warning system to strengthen financial sector surveillance, identify risks to stability and coordinated regulatory responses to them. Thirdly, I can report European agreement this week to strengthen arrangements for ensuring financial stability in Europe and increased cross-border management.
“It is important that regulators focus on liquidity as well as solvency. Here at home, the FSA will shortly set out proposals for a review of the UK liquidity regime. As the Governor has said, all central banks face problems in providing support to banks in difficulty in a world where markets rightly expect high levels of disclosure and transparency. So I can confirm that if it proves necessary to clarify in Europe the legal and practical issues surrounding the way in which such support is provided and disclosed to protect financial stability, we will work with other European countries to provide that certainty. We will now review whether rules about the swift takeovers of banks need to be changed.
“However, when problems do occur, we need to have a system in place that is clear and reassures depositors. We will introduce legislation in the next Session to establish a new regime. Together with the FSA and the Bank, I am proposing in a discussion document published today the principles for this new regime. This new regime would mean depositors are insulated from a bank that has failed, greater compensation for them and certainty that their compensation can be paid out quickly.
“As a first stage, the FSA has decided that the Financial Services Compensation Scheme is now covering 100 per cent of deposits up to £35,000. However, I have made it clear that that is just an initial step towards a more comprehensive change. We will work closely with the banking industry, consumer groups and others to agree this new regime. I hope that there will be cross-party consensus on it.
“We must all—internationally and domestically—consider what lessons there are to learn from the summer's events, and if needed I will take action. The changes we make will strengthen our reputation as the world's leading international financial centre and be founded on our commitment to maintain a strong and stable economy. I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement that the Chancellor made in another place. I know that the Minister has no say in the content of any Statements that he has to repeat. He has my sympathy, for this Statement showed no understanding that the Government in general and the Chancellor, and his predecessor in particular, have something to answer for.
I never thought that I would witness a run on a bank. I thought runs on banks existed in history books or, as the director-general of the CBI so succinctly put it, in banana republics. The Government therefore do have something to answer for. This was the first test of the tripartite arrangements that were put in place when the Government placed banking supervision in the hands of the FSA. The tripartite system failed, but the Statement gives no account of the causes of failure. Why do the Government think it failed and what should be done differently in future?
It has been reported that the tripartite arrangements were subjected to a dummy run for avian flu but not for a full-blown financial markets crisis. Is that true? If so, it is pretty incredible, and can the Minister explain that? If it is not true, the dummy run should certainly have surfaced the legal problems outlined by the Governor of the Bank of England to the Treasury Select Committee in another place. What testing has actually been carried out? Has that testing revealed the legal deficiencies? If it did reveal the legal problems, why was nothing done about them?
We also need to know who is supposed to be in charge when a crisis arises. The Governor of the Bank of England failed to answer that question when it was put to him by the Treasury Select Committee, and the FSA was no more forthcoming when it gave evidence earlier this week. Who does the Minister think was in charge? Whoever was in charge failed—that is a fact—so who was it?
Are the Government satisfied with the role played by the Bank of England? Do the Government agree with the Bank’s view on moral hazard preventing action the week before it U-turned and provided £10 billion? Do the Government believe that the role of Sir John Gieve, the deputy governor with responsibility for financial stability and the link man with the FSA, was effective?
When the Government drafted the Bank of England Act 1998 they specified in some detail the Bank’s monetary policy role, but the Act is silent on the Bank’s other activities, including its financial stability role. Do the Government think that there is sufficient clarity about the Bank’s financial stability functions?
Are the Government satisfied with the role of the FSA? Was the FSA close enough to the detail of Northern Rock’s business model and financial risk profile? If so, why did it relax Northern Rock's capital requirements in June? Are the Government confident that the FSA can analyse and spot problems early enough?
Will the Minister also explain the Government's policy towards failing retail banks, particularly the announcement on 9 October that results in the taxpayer giving an open-ended guarantee for all Northern Rock’s depositors? On 20 September the Treasury clarified the original 17 September guarantee and said that an extension to new accounts would be unfair to other banks and building societies. Do the Government now consider that the 9 October extension to all deposits is fair to other banks? Will the Minister quantify the contingent liability that taxpayers now have to stand behind?
The Chancellor has today announced consultation on protecting depositors. It might as well be entitled How the Treasury can use 21 Pages to Say Not Very Much. Do the Government have no proposals, no ideas and no clear sense of the way forward? Are the Government not going to provide any leadership in this area? The document does not deal with an issue which arises from how the Government handled the Northern Rock case—that the public will assume that if anything less than 100 per cent protection is written into the new financial services compensation scheme, the Government will step in to protect depositors, as they have for Northern Rock’s depositors. That is a problem entirely of the Government's making. Do the Government believe that they can in future escape being seen as the de facto underwriter of all retail deposits in our banking system, and if so how?
I have many other questions, but I shall finish with just one. I asked the Minister yesterday during Oral Questions about the Governor of the Bank’s view that the market abuse directive had prevented a covert support operation for Northern Rock. The Minister did not answer then, so I am going to have another go. The Minister will be aware that the Commission has hotly denied that the directive was the source of the problem, so did the Governor get it wrong or did the Government goldplate the market abuse directive when they implemented it and thereby create a barrier to dealing with banking crises in the time-honoured way? What are the Government going to do about the problem?
My Lords, for many people, the saga at Northern Rock is particularly sad. Going back, Northern Rock has had a very fine tradition as a respected regional mutual institution, one of the financial institutions of the north-east. It has been a major employer and continues to be so, and it has had an impressive record as a funder of charitable activities in the region. In many ways, it was looked up to as one of the more successful businesses in that part of the country. Yet we have seen laid bare during the past month the most extraordinary activities, both on the part of Northern Rock and in the way that it has been dealt with by some of the authorities.
I find it slightly sad that the Government seem to think of this, or wish to portray it, as a matter of international financial market instability—that is the name of the Statement on the annunciator screens now. It is actually a Statement about Northern Rock which, in my view, has two principal components. The first relates to the business model of Northern Rock. The truth is that during the first six months of this year, Northern Rock doubled its mortgage lending and has done so on the basis of extraordinarily aggressive practices and marketing. That is the most reckless way for any bank to behave. It was a disaster waiting to happen, and it has.
Can the Minister confirm that the Bank of England has already lent £11 billion and guaranteed another £23 billion? Does he accept that Northern Rock is still today following the practices that have helped get it into such difficulties? Within this week, one of my colleagues rang Northern Rock to ask about taking out a mortgage and was told that he could borrow up to 127 per cent of the value of the property at five times his income—30 per cent of that would be unsecured. That was not just happening six months ago; it is what was happening this week. Does the Minister believe, given the history of Northern Rock over recent months, that that is a prudent way for the bank to continue its operations? What is his view of the status of the management of the bank? For most normal mortals, it seems extraordinary that the people who have got Northern Rock into this tremendous mess are still there. That relates not just to some of the executive members. One wonders, for example, about the chairman of the risk committee, one Sir Derek Wanless. What is his view of the risks that the bank took at the time and what is his view now? I hope that the Treasury Select Committee will ask him to explain his advice to the bank in that capacity over recent months. Surely the chief executive and his staff must have played a major part in the fiasco that we have witnessed. I for one find it surprising that they are still in their positions.
Moving on from the bank itself, we come to the FSA, which has the principal responsibility for policing the bank's activities. Can the Minister confirm that the FSA as a matter of course has reviewed the market strategy and the business strategy of banks such as Northern Rock as a general principle once every three years, and that until a couple of months ago the next review of Northern Rock was not planned until 2009? Does he consider, in rapidly moving financial markets where you have banks and building societies pursuing aggressive growth models, that a three-year gap between the FSA even formally looking at something is an adequate way forward?
There has been much discussion about the respective roles of the Treasury, the Bank of England and the FSA in recent weeks, and some suggestions that the basic structure is wrong and that supervision for banking might somehow return to the Bank of England. Does the Minister agree that the main lesson to be drawn from the Northern Rock saga is not that the Bank of England should necessarily resume the functions of the FSA, but that the FSA should not be asleep on the job? It needs to have a major review of how it deals with the banks.
Finally, on the international aspects of all this—because there are clearly some international aspects—I reiterate the point made by the noble Baroness, Lady Noakes, about the market abuse directive. Can the Government explain whether, in their view, European legislation has played a major part in making this whole exercise more difficult and, if so, will they do something about it? I have a suspicion and a sense that the old-fashioned way of dealing with things in the City, which was a covert way, is no longer fit for purpose. I was interested that the Governor of the Bank of England thought that by covertly getting the chaps together they might be able to sort it out without anyone knowing. Do the Government share that view and, if not, what do they plan to do about it?
Like other noble Lords, I have barely seen the consultative document. It strikes me as slightly surprising that so much attention is being paid to various international matters when what is required is a more satisfactory and robust method of dealing with things in the UK and the major responsibilities that lie domestically. We require a combination of two principal things. First, we need senior management in important financial institutions who themselves behave prudently within a board structure that acts to ensure that they do. Secondly, if there is any indication that a bank or any other financial institution may not be behaving like that, can the Minister assure us that he will put pressure on the FSA to adopt a much more robust and rigorous view of its central purpose?
My Lords, I am grateful to both noble Lords who have contributed to this short debate and asked pertinent questions, but I want to rebut what I think underpins both contributions—that somehow the Government are being complacent about the issue and feel that there is no need to answer for the difficulties that have obtained through August and September with regard to Northern Rock. I hope that it will be recognised that the moment that he was able to do so—in the first week of the resumption of Parliament—the Chancellor has made a Statement to the House: both the Written Statement and the Oral Statement today, which I have had the pleasure of repeating. It will be recognised that within that Statement are constructive proposals on how we learn lessons from the problems that have clearly emerged during those months and necessary action for the future.
I am grateful to noble Lords, who identified some of the questions that need to be addressed. Let me assure the House that the Government are all too well aware of those questions. That does not mean that there is an immediate and straightforward answer. If there were, the questions would not be apposite, but they are apposite because they relate to a difficult situation. We are concerned to establish consultation on how we amend the process. As the House will recognise, during the Recess both the Governor and the chairman of the Financial Services Authority were present before the important Select Committee in the other place to respond to some of those questions and identify their preliminary answers. Their answers were bound to be preliminary. I want to refute straight away that this tripartite system, which has been in existence for the past 10 years, has never had a test. It has had significant tests produced by financial problems which have had to be resolved. We are all aware of banks which may not have failed in quite the same way as Northern Rock, but we all know of substantial financial institutions which were in great difficulty a decade or so ago and that international terrorism produces real problems for the financial markets. The structure in this country has stood these shocks to the international system and their impact on the British system. It has withstood them in a very able way helping to ensure that over the past decade London has become the financial centre of the world, and the basis of the British economy has gone from strength to strength. The Government intend to sustain the tripartite system described in the Statement. We are aware that the individual actors in the system know that they have questions to answer on the process of consultation and how performance can be improved.
Some of the questions can be exaggerated for obvious reasons. I am pleased that the noble Lord, Lord Newby, has not been in close alliance with the noble Baroness, Lady Noakes, and her very heavy emphasis on the financial directive and matters European being automatically within this framework—if one can identify that a great deal of the responsibility and difficulty is because of the way in which Britain has handled its relationship to Europe, that will please her Back-Benchers in this House and in the other place.
My Lords, for clarity, I raised the market abuse directive because there appeared to be a difference of opinion between the Governor of the Bank of England and the Commission. I was not seeking to make any comment about our general relations with Europe on this occasion.
No, my Lords, but the emphasis placed on it is scarcely merited by the role that the directive plays in these terms. We do not consider the directive to have been a crucial factor in the reaction to these issues as far as the authorities in this country were concerned, although we will discuss with our European partners aspects of the directive. We are aware that similar problems occurred in Germany and France as well as in the United Kingdom.
The responses thus far have been effective. Criticism has been made that there is considerable risk to the taxpayer. At this point, the taxpayer has not made any contribution to the Northern Rock issue. The support is guaranteed against its existing assets, which the House will know clearly depends on how the bank survives and its future arrangements. It ill behoves anyone in the House to be wholly pessimistic about that. On the existing management at Northern Rock, are noble Lords opposite suggesting that it should have been fired by a government decree?
My Lords, that is taking interference in the market a little further than the whole House may wish. It is a matter for the shareholders of Northern Rock, to whom the management is responsible, and not for government action. On whether Northern Rock should continue to trade, it is being charged a commercial fee from the public resources it receives, so it has no competitive advantage because of that. However, it is the responsibility of the authorities to seek a solution to the problem of Northern Rock as early as possible.
Our intentions are clear. Of course, there are lessons to be learnt, which the Governor of the Bank of England made clear when he appeared before the Select Committee in another place. The Financial Services Authority also recognised that there were lessons to be learnt from this situation. We need to consult on this. The lessons may lead to legislative change. We will consult and ensure that we have a reasonable period of time for that consultation in order to draft appropriate legislation, but it should be recognised that the structure is secure. It has served this country for well over a decade. It is in position to effect the necessary corrective on this occasion. The risk to the taxpayer is severely limited. I refute the suggestion that taxpayers have been involved in any significant cost.
I very much appreciate the contributions. I hope that the noble Baroness and the noble Lord will recognise that the Chancellor in his Statement hoped that, because this is an issue of considerable importance to Britain, our economy and financial stability, and to the role of London as a leading financial location in the world, we need to get the legislation right. We need to learn the correct answers to the problems that have arisen from these developments. I hope that we can look forward therefore to an all-party consensus on doing what is right to remedy the difficulties we have had in the recent past.
My Lords, although I accept that seismic incidences in North America have sent shock waves across the Atlantic and that a great deal of the problem emanates from that source, has not Northern Rock been the architect of its own difficulties to a great extent? Am I right in assuming that, before the Treasury took what I regard as a very bold, decisive and proper course in underwriting the deposits of Northern Rock, the Government made a careful analysis of the situation of the company over the previous 12 months? First, had it been indulging itself in allowing mortgages at 125 per cent of the value of the real property used as collateral? Secondly, were mortgagors encouraged to make their own assessment, not only of their current incomes but of future incomes? Thirdly, was there an over-indulgence in so far as borrowing short and lending long was concerned on the part of Northern Rock?
It seems that no Government could possibly have taken the wholly fundamental decision that they took—rightly—without having analysed those situations and come to some meaningful conclusion concerning them. What were those conclusions? What is the factual situation? Far from suggesting that the Government should be responsible immediately for dismissing errant directors, I wonder whether they have obtained some form of undertaking from the company that such disciplines will be looked to?
My Lords, the answer to the noble Lord is straightforward. The Bank of England did not support Northern Rock because of the deserts of that company. Every noble Lord as well as everyone in the market was palpably aware of the exposure of Northern Rock to the collapse of liquidity in the wholesale markets and its vulnerability. It is a private company which takes responsibility for its judgments, and having seen the initial catastrophic collapse of its share price, we are all too well aware of the price that is being paid for incompetence. But the Government have two responsibilities. They certainly have a responsibility to the ordinary, relatively low-scale depositor—men and women in the street who trusted Northern Rock as an institution and whose funds were at risk—and it was right for the Chancellor to make clear the underwriting of the position to guarantee those deposits.
The second responsibility is in regard to the international liquidity position. It was the judgment of the Bank of England that excessive turbulence in the market could lead to a serious impact on the economy. We are by no means outside that turbulence at present, and none of us would be sanguine enough to suggest that there will not be some difficult months ahead. But it was the Bank of England’s judgment that increasing liquidity to a limited extent at this point would offer a degree of stability and help to ensure that there are no repercussive effects from Northern Rock on other institutions. That is a judgment made by the Governor and for which the Chancellor is ultimately responsible in terms of support from the elected House. But let us remember that the Governor is charged with the responsibility of sustaining stability in the markets as far as he is able through his actions, and he was fulfilling that remit.
My Lords, the Minister said that the system has worked over the past 10 years, but he did not give any example of which particular problems had been solved in that way. The reality is that when it came to the crunch, the system devised by Mr Gordon Brown 10 years ago did not work, with the consequences we are discussing today.
I have three questions for the Minister. The first is on a point which has already been raised—the European directive. It is pretty clear that the reason the Governor of the Bank of England received advice that it could not provide a solution to the problem in the way he wished was that the directive prevented him in that regard. The European Union then said that the directive did not prevent him. The reality seems to be that it was the gold-plating of the directive that caused the problem. The Minister rightly says that we are not out of the woods yet, so do the Government propose that the gold-plating should be removed forthwith?
Secondly, in his Statement the Chancellor said that he is proposing to change the arrangements for compensation to depositors. One can certainly agree that a system to meet an immediate problem as it arises is needed, but I do not understand why there is any need to raise the limit from £35,000. It is only people who decide that they want to deposit a sum over that amount with a particular building society who would have a problem. The Minister will correct me if I am wrong, but if they spread their funds around, there will not be a problem. There is no need to increase the potential burden on taxpayers in order to cover people who allocate their assets in an imprudent way.
Thirdly, on the guarantee, there seems to be something of a mystery, and perhaps the Minister could clarify the position for us immediately. I am not clear by what authority, legislative or other, the Government gave this particular guarantee, and the contingent or possibly real charge on the taxpayer. I simply do not understand how, when a Minister decides that he will give a guarantee, that situation could arise. On the position of the directors of Northern Rock, it is quite extraordinary that the Government should give the guarantee without seeking in some way to hold the directors to account. At that point the Government are clearly in a very strong bargaining position indeed. It is extraordinary that after the guarantee had been given, the Government then decided that the company might issue a dividend. That is really quite amazing. Indeed, it continues to lend huge multiples of income. That of course is widespread across the industry, but we are going to run into a negative equity problem on a far greater scale than anything we have ever seen before if this kind of thing goes on.
I should like to make a final point. The Government have said that they are seeking to improve the transparency of off-balance-sheet finance. If that is so, one would hope that the Government will be the first to do that—they certainly are not doing so now.
My Lords, I turn to the first question about the EU directive and gold-plating. All central banks in the modern age find it far more difficult to intervene in the market and provide support against a background in which the markets expect disclosure and transparency a great deal more than was the case a decade or two ago. So there are problems in this area and that is why we intend to discuss both in Europe and elsewhere the role of central banks in dealing with this issue, and the question of the directive obtains in those terms. However, I seek to minimise the salience of the directive because in a sense European central banks have nothing to do with the directive, and they all face the same problems in how they respond to markets.
The guarantee arrangements were made under the Treasury’s common law powers and they were noted to Parliament, as is appropriate, so they followed exactly the position Parliament gives to the Treasury. The noble Lord asked whether the limit needs to be raised above £35,000. The Chancellor made it clear several weeks ago that the guarantee would be set at that figure to stabilise the position in Northern Rock, but whether the figure needs to be set higher is a proposal in a discussion document about the protection of depositors, so no decision has been taken. The Government have indicated that in order to ensure stability in such important institutions, £100,000 may be necessary to recognise the position of house purchase arrangements, but it is not a decision. Rather, it is a proposal to be discussed, and I have not the slightest doubt that the noble Lord will make his views on the issue known as well.
I appreciate the point made by the noble Lord about rewards to Northern Rock. The Government and the Bank are concerned that Northern Rock should not fold under these circumstances. It would have a catastrophic impact not just on those with resources in the company, but possibly on other institutions. We all recognise the problems that would arise from a complete bank failure, so some support has been provided. That support is limited and it is not anticipated that Northern Rock is going to remain in its present state for very much longer. If the question is whether the present directors are fit for purpose, the obvious implication may be anticipated that control in Northern Rock will potentially change in the near future. But I stress that those who have taken this role within Northern Rock are looking not towards rewards but to a catastrophic situation in their own terms.
My Lords, my noble friend is absolutely right, as are other Members of this House, that there are serious lessons to be learnt, both in this country—particularly by Northern Rock and the Bank—and in other countries. The issue, however, is much wider. Will he continue to take a firm line with those who seem to think that this was a badly handled event? In view of the circumstances, it was extremely well handled. To take lessons on negative equity from a party that managed to turn negative equity into a growth industry for homeless families’ accommodation would be extreme, to put it mildly.
This is an international problem; it is a problem for Germany, France and, obviously, the United States. There is a question about transparency and secrecy. I welcome the decision to have a voluntary agreement by hedge funds and others to have a less secretive and more visible financial system. Maybe—and I understand this is one of the things being talked about—we need far greater agreement at the G8, the IMF and the World Bank on creating some structure as we are now dealing with a world financial system that is radically different from what it was before. A run on a bank is a serious matter that affects a number of countries, not just this one.
My Lords, I am grateful to my noble friend for providing some corrective to what on the whole have been negative comments from the Back Benches. He will also appreciate that we are all too well aware of the fact that questions have been raised during the course of these disturbing developments of the past few months. Those questions are acute enough for it to be necessary for us to address ourselves to them. The Governor of the Bank of England has made it clear that he thinks that is necessary, as did the Financial Services Agency when it was giving testimony to the Select Committee. The Chancellor has already indicated that not only does he think it is necessary, but he is concerned to produce a consultation paper in order that we can get the best possible approach across the country and across the parties to a solution to what is, after all, fundamental to our economy and financial system in which every single person in the United Kingdom has a stake.
My Lords, we know that the Government have given an unlimited blank cheque to Northern Rock, but is it undated as well? How long is this going to last for while the hedge funds circle to see if they can sort it out? What are the limits?
My second question is about sub-prime lending. In the Statement the Government said,
“our sub-prime market share, 5 per cent, is much lower than that of the US”.
What is the definition of “sub-prime lending” in the UK? If the Minister does not know, will he write to me with the official definition? I should volunteer that I am the colleague of the noble Lord, Lord Newby, who rang up Northern Rock this week and got what I can only describe as a sub-prime quote for a 127 per cent loan, which it is still offering. I shall run through it quickly: one is offered a £127,000 loan on a £100,000 house, so if you have a gross income of £500 a week, the interest payable alone would be £160 a week on that loan. That is before any deductions or any capital repayment, so what we are talking about is probably more like half someone’s income. Does the Minister agree, when he thinks about it, that at a time when house prices are falling fast in many parts of Britain, that is a toxic mortgage with “repossession risk” written all over it? If taxpayers are not underwriting sub-prime loans today, I do not know what they are doing. How can this possibly be right?
My Lords, the noble Lord is asking me an impossible question when he asks for a definition of “sub-prime”. As I understand it, it started off as an American term for a broad category of certain kinds of loan, and it has a different connotation in other countries. But we all understand that by “sub-prime” we mean “additional risk involved”. I cannot give a definition much beyond that. If the noble Lord is dissatisfied with that—and I clearly see he is—I will certainly write to him and give the best definition we can.
On the more tangible issue that he raised with me, the company asked for support until February 2008 while it considered all its options, and we have agreed to provide support to that date.
My Lords, I shall ask the Minister just one question, because he has the beguiling habit of roaming widely over the whole subject and getting away with not answering all the questions asked by the noble Lord, Lord Elystan-Morgan, or anyone else.
The FSA has the responsibility to monitor financial institutions. It has obviously been found wanting in these circumstances because it had not monitored for nearly 18 months or thereabouts. We have all been aware of this situation for at least two months, and still the noble Lord, Lord Oakeshott, is able to ring up, ask for a mortgage and get one on the terms he has so ably described to us now. Why is that still happening, what is the FSA doing about it and what are the Government going to do to the FSA about this case?
My Lords, the answer to the noble Baroness’s question is straightforward. With this additional public support under Northern Rock, to put it at its mildest, the FSA is taking the keenest and closest perspective on the developments in Northern Rock with the objective of establishing as far as possible the best possible and most secure position for those who have an interest in Northern Rock. This is not a question of control or the position of the directors—it is for the private market to decide when change occurs—but does anyone in this House seriously think, if there is a change of ownership at any time, that the existing directors will sustain?
What is the FSA doing about this? It is monitoring the position, because that is its obligation, and guaranteeing that the support that is given is within the framework of public policy in this area in order to achieve the best possible solution to what we all recognise is a fraught position for that institution.
asked Her Majesty’s Government what guidance they are giving to the Gambling Commission to ensure that the integrity of sport is not compromised by the growth of the betting industry.
The noble Lord said: My Lords, I express my appreciation to noble Lords who have put down their names to speak in this short debate, particularly the noble Viscount, Lord Falkland, and my noble friend Lady Golding, both of whom were valued members of the Betting and Gaming All-Party Group inquiry into the effects of betting on sport, which I chaired nearly three years ago. I have two interests to declare, one as an adviser to the football pools business, which goes back more than 30 years, and the other as an adviser to the Alderney Gambling Control Commission.
I do not have time today to describe all the alleged incidents of improper or corrupt betting practices about which our inquiry team heard evidence. Generally they involved an expected sporting outcome not happening, such as a favourite in a horserace losing as a result of unexplained behaviour by the jockey. I do not intend to say more about that because a criminal trial is currently under way in which exactly that allegation is at the heart of the prosecution’s case.
We heard a lot about the improper use of inside information that is not available to the normal punter, such as in cricket matches where large sums were won by punters who correctly forecast bizarre events like the number of fielders who wore sunglasses or the number of times the bails were removed in the course of a morning’s play. The noble Lord, Lord Condon, was a particularly valuable witness in this area. He has sent me his apologies for not being here today but welcomes this debate. We also took evidence about a Rugby League match where the winning margin was predicted with great accuracy by two players from one of the teams, who knew that their team was fielding a weakened side.
Some of these incidents may involve straightforward corruption. A football match where it can be proved that a player was bribed to ensure that his team lost or one in which it can be proved that the referee was bribed to produce a particular outcome both involve a clear case of cheating, which could lead to a conviction and prison sentence. But what about the use of inside information? There was a great difference of view between the Jockey Club, which was against the use of inside information for gain, and the bookmakers, who described it in their evidence to us as,
“the commerce of the racecourse”.
We asked the Financial Services Authority how it defined inside information in the context of investment in financial services. It told us that, if its market abuse regime were to be applied to the betting and gaming industry, a large part of the information made selectively available to bookmakers and chosen punters would be inadmissible and subject to both the criminal law and the civil law regime set out in the Financial Services and Markets Act 2000.
The most important way of tackling the unfair and potentially corrupt use of inside information is to have information exchange agreements between betting operators and the sports on which they take bets. Here, the betting exchanges have led the way. The Jockey Club told us that it was very keen on them and said that it uses them almost daily because the audit trail that they provide is excellent. Its spokesman told the Racing Post:
“The access we get to jockeys’ and trainers’ telephone accounts has given us powers of investigation we didn’t have before”.
These responsibilities now lie with the British Horseracing Authority, which I visited on Monday to watch its regulatory unit at work—and very impressive it is. It has been given a budget approaching £3 million to do this and is demonstrating a capability to monitor all major online sports betting. Indeed, over the summer the BHA was called in by the Association of Tennis Professionals to investigate allegations of corruption relating to a tennis match in August in the Poland Open tournament, on which Betfair reported that bets totalling $7.3 million had been matched. The favourite, ranked world No. 4, was backed to lose to a player ranked 87th. Despite losing the first set to the favourite, the underdog was still being backed during the second set, which he won. Following that, the favourite suddenly withdrew from the match with a foot injury. There was something wrong there. Betfair very wisely voided all bets and the anti-corruption inquiry continues.
Our report contained a total of 15 recommendations. Some were directed at the Government, a number at the betting industry, several at the sports governing bodies and the most important at the Gambling Commission. What has happened since we published our report? Quite a lot, I am pleased to say. The Gambling Commission has been consulting widely on information sharing, which it rightly regards as being a central element in achieving integrity in sports betting. It has published some helpful papers, one of which contains strong guidance that betting organisations should sign information exchange agreements with sports governing bodies so that irregular betting patterns can be fully investigated. It also agrees with our recommendation that sports governing bodies should be consulted on what sort of bets should be permitted. I take the simple view that no bet should be allowed on the outcome of a sporting event that depends for its success on inside information or on an action or influence by a small number of people.
A central recommendation from our inquiry was that there must be proper rules on who may and may not bet on competitions or events in which they are involved. For example, the Football Association has a rule—Rule E8—that no one involved with a club, as manager, director, player or even office staff, may bet on any match in the same competition. It is difficult for the FA to enforce that without assistance from the betting industry. Press reports appeared a year ago alleging that some Premiership managers were placing enormous bets with bookmakers Victor Chandler contrary to Rule E8.
If there were transparency and openness in the relationship between a sports governing body and betting organisations, based on a proper information exchange agreement, the FA would be able to ask bookmakers for details of the bets and the identity of their clients. I believe that, as far as the onshore betting industry is concerned, this will come, because the Gambling Commission is determined that it should. Indeed, the major sports organisations are working with the commission to ensure that the betting industry understands what the various sports’ rules are and that it is the betting industry’s responsibility to report irregular patterns of betting behaviour. This is central to the integrity of sports betting.
There is obviously a difficulty when it comes to offshore betting organisations, particularly those licensed by more relaxed regulators. Certainly I see little sign yet that Gibraltar, which is where Victor Chandler operates from, is minded to impose the same sort of tough regime that the Gambling Commission is introducing here. The FA has asked this company to give it the opportunity to see the systems that it operates to ensure integrity in sports betting and to explore the signing of an information exchange agreement; the FA is still waiting for a proper reply. The Gambling Commission is moving in the right direction, although I wish that it were more ready to make these additional safeguards a requirement of its licensing conditions.
The Government should continue to give every encouragement to these developments, as I hope that they will. But they must also be prepared to take a much tougher line with foreign jurisdictions that license betting operations aimed at British clients. At the very least, they should insist that Gibraltar and Malta apply the same sorts of standards as those that they have required of the newly white-listed jurisdictions of the Isle of Man and Alderney.
We said in the conclusion to our inquiry that we accepted that the greater part of sports betting is neither corrupt nor unfair to punters. But the growth of the betting exchanges, because they give punters the facility to bet against a result, has increased the potential for corruption.
It would of course be nonsense to argue that no improprieties took place before the advent of the exchanges. This dates back to the early Olympics, with allegations of athletes accepting bribes to lose a competition and city states trying to manipulate the outcome with large amounts of money. I understand that it was also very popular in chariot racing. In more recent times, the betting practices present in cricket in Asia and South Africa, as described to our inquiry by the ICC, had little to do with the exchanges, and the history of a variety of sports in the UK and elsewhere in Europe over the past century is littered with incidents, allegations and, in a few cases, criminal convictions.
However, the advent of the exchanges has brought with it new challenges to sports governing bodies, gambling regulators and government. If the betting industry rises to these challenges, the integrity of sports betting could be improved by the greater transparency and disclosure that the adoption of demanding and meaningful information exchange agreements can create. However, it is necessary for all these arrangements to be tightened up and significantly improved and for risk assessments to be conducted on particular sports betting. I hope to hear from my noble friend today that the Government are encouraging the Gambling Commission to do exactly that.
My Lords, I should declare interests in this. I have in the past run casinos, although not in this country, on behalf of a British bookmaker. Secondly, I was until recently executive chairman of the Jockey Club racecourses and was therefore responsible for the running of the races at Aintree, at Epsom for the Derby and at Cheltenham.
I welcome this initiative. A number of concerns have arisen as a result of the Gambling Act and they deserve close consideration. I have three principal concerns to raise with your Lordships. The first is, like the others, an unintended consequence of the Gambling Act. There is a rapid and tangible drift to the conversion by the bookmakers of the 10,000 or so betting shops into mini-casinos. That trend carries a real moral hazard, about which we should all be concerned. It is not so many weeks ago since we debated in this Chamber the issue of the super-casino for Manchester. Noble Lords will recall that we were concerned about the definition of a “destination casino” and the extent to which it represented a bigger hazard. However, the moral hazard presented by the spread of the virus of 10,000 immediately available local casinos to the midst of our local communities is immeasurable.
I do not suppose that a great many noble Lords are in the habit of visiting betting shops, so I shall take them on an imaginary tour of what is going on in them. Every casino is allowed to have four FOBTs—that is, fixed-odds betting terminals. Until eight days ago, they were confined principally to roulette, blackjack and stud poker, but they have now been expanded to include direct access to virtual reality racing, to which I shall return shortly.
The FOBTs are the subject of a series of control orders recently issued by the DCMS which I regard as a disastrous gathering of the inadequate and incompetent assessment of the controls to be imposed on the betting shops. They fail in almost every major respect to address the critical issues; for example, they open up the scope for immediate and repeated betting by touching one knob to repeat the bet that one has made previously. You can therefore bet virtually unlimited sums. You have to put real, folding money into the machine. It will then register you as having a number of stakes available according to the number of pounds that you have put in—you can diminish it to a fraction of a pound. You can then touch any number of numbers on the roulette keypad, so that you could bet, let us say, 20 separate numbers for £1 each. However, according to the control orders, which do not foresee that risk, you can press each number 10 times. So you could have £200 on a single spin and press one number to repeat that bet as many times as you had stakes left in the machine. There is no separation of your original stake from the winnings, and therefore no opportunity to remove your stake and bet just with the winnings.
The risk was summed up beautifully yesterday by a senior bookmaker who said to me, “Do you know, our betting shops are empty in the afternoon now; there’s nobody there”. “Why is that?”, I asked. He said, “Because our machines are so efficient that we have stripped all the money out by lunchtime and everybody’s had to go home. There’s no money left in anybody’s pocket”. Moral hazard is rampant there.
Virtually reality racing has concerned me for a huge time. For those who are unfamiliar with it, I say that it is a technique which has been developed by the bookmakers whereby they are able to represent with a computerised software programme an imaginary race run by images of horses, with jockeys on top. It is known in the business as cartoon racing. In theory, each of the 12 horses in a race has an identical chance, with odds of 11:1. However, the bookmakers want to encourage people to bet on them, so they put up on a separate screen the imaginary odds for three or four of the horses to imply that they are favoured. The Select Committee on Merits of Statutory Instruments, of which I am a member, asked the DCMS whether the odds were being in any way manipulated. We were told that they were not, that the bookmakers were at arm’s length from the software systems and that the software system was sacrosanct and never interfered with.
When we then asked why they were able to offer odds of 3:1 on a horse in a 12-horse field, the startling answer was that they were giving the chosen horses a 20 per cent loading of having a better chance. The bookmakers were thereby admitting that they were lying; they were intercepting the system. One would expect in those circumstances to see the incidence of winning favourites to match the 20 per cent or so which applies to live, breathing racehorses in proper races. In fact, it comes out at 16 per cent; that is, nearly four points below the average for living racehorses. It is even more remarkable that the clear favourite, if it is winning only 16 per cent of the races, is coming second in 17 or 18 per cent of them. God forbid that I should be accused of being a cynic, but if I were, I would say that the bookmakers are getting it both ways. They are encouraging bets to be laid and then avoiding the necessity of having to pay out on the horse that is the favourite because the software system is in some way stopping it winning. That is as much a corrupt process as slipping dope to a horse or getting a jockey to pull it. What on earth are the bookmakers doing? It is a question of integrity in racing, but one that comes from a different direction.
The bookmakers claim that because they now offer these wonderful betting methods, they should no longer contribute to the betting levy which has been the lifeblood of British horse racing and the thoroughbred racing industry. As a result, the industry is now bereft of £90 million. The Government should do three things immediately.
My Lords, I shall list those three things and finish. First, the Government should adopt the recommendations of the excellent committee of the noble Lord, Lord Donoughue, and impose on the betting industry the restoration of the levy at a reasonable level. Secondly, as the noble Lord, Lord Faulkner, said, they should immediately require offshore bookmakers to abandon advertising in Britain or to comply with the usual regulations. Thirdly, the DCMS should revise all its controls on betting shops to stop them becoming mini-casinos. It is an outrageous state of affairs and needs immediate correction.
My Lords, we have reason to thank the noble Lord, Lord Faulkner, not only for introducing the debate but for the incredible amount of work that he has done to try to generate understanding of betting today, with its new technologies and the difficulties linked to human fallibility and criminality which they have created. I am surprised that the Government have not sought to counter the view put forward in the press that there has been a new development in our society and that people have suddenly become dishonest and seek to influence the results of races and other sporting events. That is not the case: there has always been dishonesty in sporting events.
It is in fact more difficult today to be dishonest in sporting events and to alter results. We can take pride in the new technologies for that. You have to be a very clever criminal to get past the close examination that takes place, but, as with all other classes of person, there are good, indifferent and bad criminals. As with car theft, only a good criminal nowadays can steal a modern car; only a good criminal today can get to the bottom of the challenge of influencing results to create fortunes for themselves. An attack on the new technologies, therefore, on grounds that they have generated new vice in our society, is quite misplaced.
The noble Lord, Lord Faulkner, must have been a little ironic in asking the Government what guidance they will give to the commission. I do not expect him to be as vituperative as me or the noble Lord, Lord James, but there is nothing to make us believe that the Government will be able to lead; it is rather like expecting the blind to lead the partially sighted. The Government’s record on gambling and betting has been disastrous. The noble Lord, Lord James, gave us the example of the FOBTs, which are dishonest in themselves because they are gaming machines. People ask, “FOBTs? What’s that? They must be all right—it sounds complicated”. He explained that phenomenon well.
The noble Lord, Lord Faulkner, and I, together with the noble Lord, Lord Donoughue, who is in the Chamber, and the noble Baroness, Lady Golding, who will speak later, went to a great deal of effort of which we should be proud. However, the Government’s response was disastrous and a bad Bill appeared on the statute book. Many questions will have to be answered at a later stage. The Government completely failed to understand how regeneration could be achieved through casinos. They never even bothered to look at it. The whole idea of regeneration was knocked on the head—although very few people remarked on it—just before we had the famous vote in this House which was narrowly won by the Minister, whom I always admire for his tenacity in some of the briefs he is given and for the agreeable way in which he carries out his job. The Chancellor of the Exchequer, as he then was, suddenly put a 50 per cent tax on casinos, which really meant that regeneration was out of the window.
The question of dishonesty or cheating in sport was something that we discussed at length in the pre-legislative committee. We failed absolutely to come to satisfactory conclusions on that, although the noble Lord, Lord Faulkner, moved us a long way forward in his deliberations and the meetings that he set up.
I shall conclude my remarks on the subject of racing. The case of Fallon and the other jockeys is a disgraceful case that should never have been brought. I would not bet on it, but in my view he is bound not be convicted. It has been a long and disgraceful proceeding in which a lot of people have had to wait around with loss of earnings and the distresses that have resulted, going right back to jockeys being arrested in the middle of the night.
Fallon is one of the best jockeys of the past 50 years. Jockeys are a particular type of person. They are very vulnerable, although they are strong little men who have a talent for moving half a ton of horse flesh in tough races, day in and day out. They do not have much time to get involved with criminals, but criminals get in touch with them. I think that what happened with these jockeys is that criminals got in touch with them and they allowed themselves to get into contact with them, and then they found it very difficult to disengage. Criminal elements are extremely adhesive once you get involved with them.
When Fallon was riding in France, when I was over in Deauville in August, he had a look of joy about him, even with the sword of Damocles hanging over him. Presumably he was not getting calls all the time asking why that was, because during the period when he was supposed to be fixing races his percentage of winners went up from 19 per cent to 28 per cent—so there must have been some very disappointed criminals about. I foresee a result there that will surprise some people.
The sporting bodies are the ones that must deal with this. I hope that we will return with another debate on this, because there are many things to say. The Government will not be able to give any guidance, so let the sporting bodies do it along with the Gambling Commission and we might get somewhere.
My Lords, I shall draw attention to the role played by the organisation Business in Sport and Leisure, or BISL, in promoting the commitment of the gambling industry to corporate social responsibility. BISL represents more than 100 private sector companies, including those from all major sectors of the gambling industry. I should like to see the Gambling Commission encourage BISL to seek further improvements in the communication and co-operation between betting companies and sports bodies, in the interests of integrity and of consumer confidence.
The role played by BISL is similar to the Portman Group's in relation to the drinks industry. At the Portman Group, I helped to develop mechanisms for effective self-regulation and educational tools to tackle problem drinking. Some of those devices are now being used as models for similar initiatives in the gambling industry.
I should declare two other interests. I sit on the Advertising Standards Authority, which from September this year has responsibility for regulating gambling advertising on television for the first time. My personal interest in sport—although I am aware that some might regard this as a dark confession rather than a declaration of interest—is that I am a lifelong supporter and season ticket holder of Fulham Football Club.
Behind this debate is the genuine worry that the relatively new form of gambling, betting exchanges, may compromise the integrity of sport by inviting corrupt practices. This is self-evidently in the interests of neither the gambling industry nor the sports bodies, but innovation in any sector will often expose gaps in the regulatory framework. The invention of so-called alcopops in 1995 did exactly that in the drinks industry. Existing legislation and codes of practice on advertising and retailing did not address the new and particular problem of certain alcopops, which was that their naming and packaging were irresponsible by appealing to children. So a new code was devised to tackle this new dimension of marketing.
In the same way, betting exchanges have opened up new territory which must be patrolled and policed. The question is how and by whom? The answers depend first on assessing the extent of the problem. Warning bells were clearly sounded in the report produced by the noble Lord, Lord Faulkner of Worcester. More recently, the Gambling Prevalence Survey revealed that although the overall level of problem gambling has remained low at 0.6 per cent of the whole population, for the 1 per cent of the population who participate in betting exchanges that figure rises to 9.8 per cent. But evidence submitted to the Gambling Commission's consultation on integrity in sports betting suggests that the incidence of corrupt practice is very small. So there is certainly a need for educational initiatives on problem gambling—and this is one facet of how the relationship between sports and betting can give rise to a loss of integrity, by tainting the image of both with the association of harm and dependence. The industry's leading companies pay a voluntary levy to fund the Responsibility in Gambling Trust, but there is plenty of scope for more companies to contribute, which should be a priority for the betting exchanges in particular.
The need for centrally funded action to address the facet of integrity concerned with corruption is less obvious. The industry is already obliged under the new statutory code to share information about any unusual betting activity which should trigger an investigation within the sport involved. The question of cost has been raised, predictably, with the sports bodies looking to the industry to provide funding, perhaps through another levy. It seems to me, however, that this would be a step too far in being proactive, and that the right note to strike is to concentrate on sport and industry continuing to share information as required by the code, with individual sports’ governing bodies taking responsibility for following up in the right way for them.
The recent policy announcement by the Gambling Commission judged the situation fairly and accurately. It is more important to have consistency in the principles involved in investigating and rooting out corruption than to have an artificial consistency of process or a uniform funding arrangement. Heavy-handed intervention by a government agency would be disproportionate. If the Gambling Commission, the Government and ultimately the public are to be content for self-regulation to prevail, then the basic principles behind the process must be transparency, independence of decision-making and accountability, backed up with realistic sanctions if malpractice is uncovered. The expertise of bodies such as BISL and the Central Council for Physical Recreation could be drawn on to help. BISL has already developed a training standard which Gambling Commission inspectors use as the basis for their work. And the CCPR is commissioning more detailed research on the scale and nature of sports betting which should help to shape evidence-based measures in future.
This debate has been framed in terms of possible loss of integrity to sport. I would suggest that growth or innovation in betting exchanges and betting companies would stand just as much chance of provoking loss of integrity to the industry unless it rigorously observes the high standards in the voluntary code brokered by BISL and the statutory code which forms part of the new licensing regime. Enlightened self-interest means staying a step ahead of any problems associated with its products—and this is what the industry must do if it wants to retain its commercial freedoms and consent to self-regulation.
My Lords, I apologise for my husky voice, but with any luck it will last six minutes. I congratulate my noble friend on instigating this very important short debate. I have first of all to declare a number of interests. I am treasurer of the All-Party Racing and Bloodstock Group, treasurer of the All-Party Greyhound Group, chairman of the All-Party Betting and Gaming Group—and I am an administrative steward and director of the British Boxing Board of Control, to which I intend to limit my remarks.
One of the many positive things that came out of the Government’s decision to present a new Gambling Bill was the obvious need for sports to work together to prevent fraud and to protect gamblers and the good name of sport. Having spent very many long hours on the pre-legislative scrutiny of the draft Bill, noble Lords, together with MPs, decided to set up the inquiry mentioned by the noble Lord, Lord Faulkner, and so very ably chaired by him.
One of the sporting bodies that gave evidence was boxing. Because it is perceived as a dangerous sport, it is one of the most tightly controlled, with inspectors and representatives at every level and a reporting system in place. The British Boxing Board of Control is the regulatory and licensing authority for professional boxing and as such its members are not allowed to have any financial interest in boxing. Further, our rules do not allow professional boxing to take place in a venue where there are betting facilities. So although betting companies sponsor boxing, the board has no relationship with bookmakers at all. But that is not to say that people involved with boxing are not allowed to bet; they are. Indeed, I myself am known to have a few bets—in fact, quite often—but I have never as yet bet on a boxing match and most of my friends with whom I discuss boxing do not either.
At the moment gambling is not a big issue for boxing, but that does not mean that it can be ignored. With the growth of exchanges and spread betting and more and more venues having agreements with bookmakers, boxing, like other sports, needs to look again. New regulations need to be put in place. We would not, for example, want to see betting facilities in the auditorium or betting after the boxers leave their dressing rooms. We also wish to consider who of those taking part would not be allowed to place bets and how far the board would be involved with the bookmakers. We have been fortunate in having the advice of Tom Kelly, the chief executive of the Association of British Bookmakers, because much of this is new ground for all of us.
The protection of the boxing board’s good name is very important to us. Following our efforts we were pleased to be recognised by the Government and the Gambling Commission and registered on the list of sports governing bodies in the Gambling Act. For boxing this is an important time. We intend to move forward and in doing so will work closely with the Gambling Commission and the bookmakers to protect the integrity of all sports. In saying that I gently remind the Gambling Commission that those who have spent years running both sports and gambling know how they need to be run. The Gambling Commission should listen to the regulatory bodies and not spread its wings too wide.
My Lords, this is an important debate about the integrity of sport. Many noble Lords will have heard me wax lyrical about the importance of sport and inspiring people to take part in it, as getting people to take exercise is the answer to many health problems. People need an icon to live up to. I do not care very much about gambling. It does nothing for me but it is capable of removing the romance from sport, which means that people in our increasingly sedentary society will move away from it.
Even if we do not care whether people are swindled when betting we should look at what is going on in the worlds of betting and sport, because gambling is capable of damaging something which is taking on an increasingly important healthcare and social function in people’s lives. Will the Government take every step they can to protect this part of our lives? It should not be a case of saying, “It does not matter what you do. We already know the outcome. Don’t bother taking part. Let’s do something more passive. I can’t be bothered”. That reason for addressing this question is at least as important as the idea that somebody might be swindled when they make a bet, if not more so.
Having worn my hair shirt, I ask: what can be done here? If we are to control gambling and the effects it has on sport, we need to have as much openness and transparency about the process as possible. As we all know, corruption succeeds best when it takes place in dark corners when people are not watching. How can we get this out into the open? The internet with its online gambling may expose corrupt practice. I hope that this will be reflected in the way things are regulated. Who do we look to in order to ensure that we are getting a fair result and protecting the integrity of sport?
The horseracing authority probably has the greatest expertise because it has probably had to deal with this problem longer than anyone else. I do not suggest that racing is particularly corrupt; that is probably not the case because it is subject to scrutiny. However, one should look at what has happened historically. The noble Lord, Lord Faulkner, mentioned the ancient Greek games. It was not just the ancient Olympics; all their games were subject to corruption. However, the anecdote that I like best concerns the state of cricket in the late 18th and early 19th centuries. Much more money was bet on it than on horseracing and it was infinitely more corrupt. We can corrupt just about anything. Please can we make sure that we open up the whole process?
In the briefing I received for this debate it was suggested that if we can try to get away from betting shops recording who places bets in the form of a paper ticket and cash, we would have a far better tool to control this process. We should make sure that people record where bets come from and know where the flows of money come from and where the corruption is. I am sure that the betting industry will not like that suggestion and may view it as an intrusion, but the information would not have to be shared with anybody other than the two bodies involved in the transaction unless corruption was at issue. Certainly, there is no reason why a wife or husband should find out whether their spouse is placing bets, unless the latter is corrupt and gets caught. Surely such a process would be a way forward.
I reiterate that it is not the case that betting itself needs to be protected, rather it is the things which are attached to it. If we corrupt the ideology behind sport, we damage a social good. I hope that the Government will encourage the Gambling Commission to look at best practice where it exists and to take this problem seriously. The concept of corruption has always existed, as has the temptation. The only thing that changes is the way that we deal with it and ensuring that it is dealt with appropriately.
My Lords, I join in thanking the noble Lord, Lord Faulkner, for introducing the debate.
The Government’s gambling policy was rushed through your Lordships' House just before the 2005 election—and it shows. Many problems that have arisen could have been avoided by a proper examination in this House, although if gambling is promoted as it has been by this Government, it is inevitable that problems will arise.
To me it is inconceivable that a Government aspiring to be honest or responsible should seek to benefit from human weakness, as this Government are doing by trying to make Britain the gambling capital of the world, but that is not what we are debating today. The report has many sensible suggestions which will make cheating more difficult. As noble Lords have pointed out, much can be done by sport’s governing bodies to eliminate undesirable betting practices. If there is gambling on any scale on sporting events, there will be those who try to alter the odds in their favour. It is a fact of life.
Any bet requires two parties to the transaction. Historically, betting on sport has been controlled by constant and rigorous monitoring of those accepting bets, such as bookmakers, and the monitoring of the sports themselves. With more gambling and more diverse forms of betting, control becomes increasingly difficult. Internet betting, with the ability to make contact with huge numbers of inexperienced punters, makes the possibilities for foul play virtually limitless. No longer will those seeking to gain an unfair advantage be betting against professionals such as bookmakers and casino operators who have the knowledge and ability to detect misdoing; they will be betting against members of the public who will be considerably more gullible and will rarely have the resources to retaliate if they have been taken advantage of. Taking advantage when betting on sport is easy and, unless large sums of money are involved, virtually undetectable. The noble Lord, Lord Faulkner, gave several examples, such as the number of cricketers wearing sunglasses.
One step that has not been mentioned would make a significant difference: curtailing severely online betting. This could be achieved by forbidding the use of credit cards to pay for internet gambling. There would be ways around this, but, generally speaking, only seasoned gamblers would bother. If the ability to contact other gamblers on a large scale is limited by pushing the public towards gambling on sport through licensed operators, then policing the sport becomes considerably easier. The limited number of licence holders would make it easier to monitor one side of the betting transaction; the other half of the transaction would be monitored by the licence holders by looking at and adjusting the odds of the bets placed with them on a minute-by-minute basis to protect themselves from being stung. That would be a rapid and flexible method of detecting wrongdoing.
As well as the many good ideas in this excellent report, I suggest that preventing rogues getting instant contact with large numbers of inexperienced and gullible gamblers would be the single most effective way of limiting corruption on sports betting.
My Lords, I agree with the House that my noble friend Lord Faulkner has introduced an important topic on the basis of his considerable expertise in this area. We recognise his work in developing the gambling legislation that he is now addressing and asking that we should utilise to provide solutions to some of these problems. The whole House is at one in agreeing that the integrity of sport could be threatened by illegitimate gambling and that it presents a real danger to every sport as well as to the ordinary individual who, as the noble Lord, Lord Howard, indicated, can be vulnerable to rogues who take advantage of the gullible.
The problem with gambling is that that the gambler, with the exception of a few professionals, always has an element of gullibility. That inevitable element is in the nature of taking on odds that others have presented for them. Both noble Lords from the Liberal Benches presented a strong argument on the need for integrity in sport. I know just how much the noble Lord, Lord Addington, values sport. The noble Viscount, Lord Falkland, demonstrated his enthusiasm for horseracing. Although I accept their strong representations and wish to show how the Government are responding to them, I reject the contention of the noble Viscount, Lord Falkland, that the Government’s gambling policy has been disastrous. Far from it. He cited the casinos issue; but we all know the history of that, which is scarcely relevant to this debate, anyway, and I am certainly not going to reiterate it. We all know why the casinos were presented as a problem in the rushed-through legislation just before the completion of the 2004-05 Session.
However, that legislation provided for the establishment of the Gambling Commission. As my noble and well informed friend Lord Faulkner, said, the Gambling Commission holds the key to ensuring integrity in sport and proper control of gambling. I reassure the noble Viscount that not only have the Government created and been responsible for a piece of legislation that gives us the instruments for controlling illegal gambling acts, but we are using it.
That is very important, because, even if there were no expansion of casinos and the Government stood idly by—and the Government do not have much to do with the free market of gambling, anyway—gambling is increasing, not just in the United Kingdom, but across all developed countries where disposable income is increasing. It is a corollary of increased resources and private wealth, because it is a luxury good. It is not essential, but it certainly attracts people’s extra resources, because they find it an attractive leisure pursuit. Although at times, as the noble Lord, Lord James, was keen to emphasise, some of this activity takes place in bookmakers, which scarcely look like leisure centres, at this stage I cannot accept that bookmakers are becoming mini-casinos. I am prepared to accept that one or two enterprising ones might increase the number of fixed-odds betting terminals in their shops, but I do not think that we have abuse on the scale that the noble Lord mentioned.
I assure the noble Lord that the Gambling Commission will take the keenest interest in his suggestion that virtual racing may lead to rigged odds and corruption. That is what he described. It is an important point and he has done nothing but good in highlighting the issue in this debate, but I reassure him that the Gambling Commission is responsible for the proper conduct of bookmakers. That is an important dimension of its work, and he may have highlighted something to which the commission should direct its attention.
The crucial point put forward by all noble Lords in the debate and emphasised in the opening remarks of my noble friend Lord Faulkner is the need for co-operation and effective liaison between the sports bodies and betting organisations. The betting organisations know what is going on when they see clear irregularities and the sporting bodies are all too well aware of the way in which potential corruption can occur, so the link of information between those bodies is of the greatest significance. We created the Gambling Commission to fulfil that role, and I reassure my noble friend that it is a condition of the bookmakers’ licence that they provide such a link with the sporting organisations. He has canvassed for that for a number of years and our legislation makes its realisation possible.
Tough new rules in the Gambling Act mean that decisive action can be taken against those who cheat. That is the basis of integrity in sport—a point that has been reflected in every contribution to this debate. A sport which loses its integrity loses the very concept of sport, and that is why cheating must be stamped out. Of course, cheating is reflected in illegal gambling where sporting endeavour is rigged.
The Government have not only been active with regard to the Gambling Act and are not just concerned that the Gambling Commission should fulfil its role. In 2005, the former Minister for Sport, Richard Caborn, established a 10-point plan to help uphold integrity in sports betting. The crucial themes underlying all those points is the important role of sports governing bodies, their relationship to bookmakers and the effective exchange of information.
The growth of online and offshore betting, which raises particular problems, was also identified. Of course, there are limitations on effective government action in relation to offshore betting that lies outside our jurisdiction. However, we regulate online betting in this country and, if punters bet with an online betting firm here, it is guaranteed to be subject to our regulation.
We are seeking to ensure that offshore betting meets the same standards as we set in the United Kingdom, although that is easier said than done. Some international jurisdictions clearly respond to this. States within the European Community play their part in ensuring such integrity, but we also know of locations where offshore betting can take place through online activity, and that is much more difficult to regulate. We are keeping a close eye on developments in that regard. The noble Lord, Lord James, indicated that control over advertising may be the key, and there is certainly potential for that. The Gambling Commission and the Government will look carefully at that if we think that the abuses justify it.
The betting industry is growing but, nevertheless, this country has the highest-developed sense of sporting ethics in the world. This country will not tolerate cheating, wherever it manifests itself. It has been necessary, through the gambling legislation, to ensure that there are effective channels between bookmakers, who are vulnerable to such cheating, and the organisations in sport which would be ruined if cheating became rife. They must work together to ensure that we have the necessary controls.
None of us can be complacent. That is why my noble friend introduced this debate today and why there have been such impassioned contributions from all sides of the House about the importance of the integrity of sport. Nevertheless, I emphasise that the Government take this issue very seriously. They have the weapons and the mechanisms for guaranteeing that we protect the high standards of sport and the high standards of the betting industry in this country.
UK Borders Bill
Further consideration of amendments on Report resumed.
18: After Clause 17, insert the following new Clause—
“Permission to work
Notwithstanding the provisions of paragraph 21 of Schedule 2 to the Immigration Act 1971, the Secretary of State may by order made by statutory instrument make provision for asylum seekers—
(a) who are unable to return to their country of origin or who cannot be removed from the United Kingdom for any other reason; and(b) whose asylum appeal is outstanding for 12 months or more;to apply for permission to work.”
The noble Lord said: My Lords, we have always said that refusing long-term failed asylum seekers the right to work is economically illiterate and gratuitously damaging in human terms. It deprives society of the contribution that they can make with their skills and abilities and it is absolutely demoralising for the individuals concerned, whose only alternatives are to live on the charity of friends or relatives or to work illegally.
In the case of Zimbabweans, which I have mentioned previously, the Government are legally unable to deport such people for the time being, even if it were not inconceivable that anyone could be sent to a country that has so totally disintegrated so that literally millions are having to flee merely to stay alive. The Zimbabweans who manage to get to the UK are in limbo—some for a number of years because their cases date from the time when the policy was to allow all Zimbabweans to remain irrespective of the outcome of their appeals. Even now the practice is not to return Zimbabweans while the lawfulness of the policy is being tested in the case of AH, which I understand may go on in the courts for some while to come.
Meanwhile, tens of thousands of exiles here have reached the end of the line with their asylum claims and although they are likely to be the most active and intelligent among the population of Zimbabwe, they can do nothing to develop their skills in this country so that, when Mugabe is finally toppled, they can make a full contribution towards the rebuilding of their own country.
The best way that the UK can prepare to help them when that day comes is by encouraging the exiles to work now and, wherever possible, to upgrade their qualifications. That was the view of the JCHR and, indeed, it went further. It stated in its report on the treatment of asylum seekers:
“We consider that by refusing permission for most asylum seekers to work and operating a system of support which results in widespread destitution, the treatment of asylum seekers in a number of cases reaches the Article 3 ECHR threshold of inhuman and degrading treatment”.
The committee went on to recommend that asylum seekers should be allowed to apply for permission to work when their asylum appeal has been outstanding for 12 months or more and the delay is due to factors outside their control.
We propose that where there is evidence that an asylum seeker will not be able to leave the UK for 12 months or more, he or she should be granted limited leave to remain for 12 months, with a permission to work attached to it. We strongly endorse that JCHR recommendation and put it forward as a useful proposition for us to adopt in the amendment.
According to a Home Office estimate of July 2006, there were then some 450,000 legacy cases; that is, cases where claims for asylum or leave to remain had been made but not determined and where they were not being dealt with under the new asylum model. Those cases were dumped into a newly formed legacy directorate with 1,000 staff who were to prioritise them and, where the claimants were selected, write to them sending a questionnaire so that the files could be updated and sent to a caseworker. All the cases were to be disposed of by 2011, five years from the date of the Home Secretary’s original announcement. If every one of those disposals resulted in voluntary or compulsory departure immediately the decision was made, if the decisions were made evenly throughout the five years and we assumed that only half the legacy cases were able to work, barring those people from jobs will, by 2011, have lost the economy 2.5 times 225,000 person-years of work. If one values each person-year of work at the modest figure of £10,000, the total loss to the economy of preventing these people from working will amount to £5.6 billion.
I invite the Minister to agree with that calculation and accept our amendment, which would allow these people to work while their cases were being decided. I beg to move.
My Lords, that is just another example of how much we owe to the noble Lord, Lord Avebury, and others for putting the case for this clause with remarkable exactness, giving those figures with all that they suggest. Even without his advocacy, this proposal is sheer common sense. I do not think the Minister will be able to say, as he has tried to say about other amendments, that this is sweeping stuff and that it is all wrong for the country. The downside is that people are deskilled, their dignity is taken away, the cohesion initiative and policy is damaged and they become dependent. They could be developing their skills and contributing to the life of this country. As the noble Lord, Lord Avebury, implied, they could be ready to take a place in their own countries in the future when those countries change their political situations. If we leave aside the staggering figures that he offered, this is plain common sense and for these people not to be able to work is utter nonsense.
My Lords, we are so conditioned to think of asylum seekers as taking things away from our society that it is a great refreshment to hear from the noble Lord about the contribution that they are making. It is also worth remembering that many of these people, although semi-desperate themselves, are supporting other people who are not in this country but are back in their own homes. I have just been talking to an Afghan family who know of relations in precisely that situation. I hope the Home Office will do more research into this, not only the contribution to our economy but the contribution to international development.
My Lords, it does not look as if we are going to hear from the Conservative Benches on this issue, and I am disappointed about that. On Tuesday, the noble Baroness, Lady Carnegy of Lour, who is not in her place, referred to the unfairness of the Guardian leader, which said that it was a shame that Conservative Peers were not going to support the amendment on destitution tabled by my noble friend Lord Avebury, and accused the Guardian of getting it wrong. However, when we voted today, there was no support from the Conservatives, which was disappointing. I would like to have heard what aspects of Conservative policy are preventing them supporting this amendment, which is a constructive suggestion. I shall not repeat the cogent arguments that my noble friend and the right reverend Prelate the Bishop of Winchester made, but it is important that we air the reasons for the amendment and those for not supporting it, if there are any, as well as hearing from the Minister about why the Government do not want to support it. This is an important amendment because the public perception of asylum seekers is that they come here and live on benefits. During the debate on the destitution amendment, we heard that asylum seekers are not doing that, but we do not allow them to work while they await their voluntary or involuntary removal. In no way can we be said to be being constructive about this at the moment.
My Lords, this amendment gives the Secretary of State power to make provisions to give permission to work to failed asylum seekers who are not able to return to their country of origin or who we cannot return for any other reason and to asylum seekers whose asylum claim has been outstanding for more than 12 months.
Let me address this in two parts. First, the Government believe that managed migration is a valuable source of skills and labour for the British economy and that it provides a legitimate channel for those who wish to work in the United Kingdom. However, our view is that it is crucial to maintain the distinction between managed migration and the asylum process. I know that many people seek to conflate them, but that is wrong and it does not help, particularly when we have to explain our policies at large within the United Kingdom. Entering the country for economic reasons is not the same as seeking asylum. We do not allow asylum seekers to work as that could encourage asylum applications from those with no fear of persecution and slow down the processing of applications from genuine refugees. It is important to note that the prohibition against working does not apply to asylum seekers who are recognised as refugees following a successful asylum claim. Secondly, since 5 February 2005 specific provision has been made in the Immigration Rules for asylum seekers who have been waiting 12 months and more for an initial decision. These applicants can apply for permission to take up employment provided the delay is not attributable to them.
Furthermore, under new arrangements for the handling of asylum claims, the Border and Immigration Agency is focused on concluding asylum claims within six months of the date of application. Dealing with applications more quickly than in the past will ensure that individuals are not on asylum support for any significant length of time. Only a few asylum seekers will qualify to work under the 12-month provision. As we have made clear, asylum seekers generally cannot work while their claims are being considered. Equally it would be inappropriate to allow failed asylum seekers to do so when they have no legal basis on which to remain in the UK.
Giving failed asylum seekers permission to work may also create an incentive for them to remain in the United Kingdom when we expect all successful applicants to return home as soon as practicable. It is our belief that this amendment could open our asylum system to further abuse. For that reason we continue to resist it.
My Lords, it is certainly not constructive for the Conservative Front Bench to fail to make any statement on either this amendment or the previous one. I hope that they will abandon their silence on the remaining amendments because we want to know what the Conservative policy is. It is all very well for us to have the responses of the Minister, but for a discussion outside this House—and the Conservative Party represents a substantial body of opinion—your Lordships are entitled to hear what they think about these amendments, and, in the current debate, what they have to say about not allowing failed asylum seekers who cannot be sent back to their country to contribute to the economy.
I noticed that the Minister totally ignored the remarks I made about the economic benefit that might arise from the sort of amendment we have on the Marshalled List, but he did not challenge the figure.
My Lords, I am prepared to say that—and I do not want to get into the practice of jumping back into debates—I think the noble Lord's figures were entirely speculative. I am not going to deal with figures that I do not think have sufficient veracity. Obviously our officials keep these matters under careful and detailed review; and it is right that we try to speed up the process of looking at and resolving legacy cases because that helps strengthen our system of immigration control.
My Lords, my figures are not speculative; they come from the Government. I talked about the 450,000 legacy cases. That figure has been quoted many times during the course of your Lordships’ debate. I also mentioned—I hope accurately—the Government's plans for disposing of these 450,000 cases, which they have said they will do by 2011; although, at the rate they projected that these would be dealt with, it could be considerably longer than that. I have taken the Government's figures as they have been relayed to your Lordships in other debates. I said that if only half those people were allowed to work—and half of 450,000 is 225,000—and we valued the contribution they make to the economy at the very modest figure of £10,000, that represents a loss to the country of £5.6 billion. I repeat: these are facts; they are not speculation. It is unworthy of the Minister to make that suggestion about arithmetic, which anybody can pick holes in if they are there to pick.
As the Minister did not answer on the first occasion I used the figures, and the reply he has come back with now does not address the point at all, I stick to my guns. This is what the Government are losing for the benefit of the economy by failing to allow long-term asylum seekers who have failed in their application to contribute their skills and talents to the economy.
Nor did the Minister say anything about the point made by the right reverend Prelate and me—that a lot of these people have skills and abilities, which they are willing and eager to contribute to the economy. I mentioned the particular case of Zimbabweans because, at the moment, it is not possible to send them back anyway because of the court case that is yet to be determined. Everyone in this House must know Zimbabweans who are skilled teachers, doctors—professionals of one kind or another—or tradesmen who would love to be able to contribute their skills to the benefit of the economy in this country. When Mugabe is finally got rid of, they would love to have enhanced abilities to rebuild the economy and the country of their origin.
So I am grossly dissatisfied—
My Lords, before the noble Lord continues to his peroration, I wonder whether he might have had it in mind to question the Minister on the opening sentences of his response. I was astounded that the Minister effectively insinuated that the noble Lord, of all people, was confusing migrants and asylum seekers. The amendment is crystal clear; the noble Lord’s speech was crystal clear; so was mine; but the Minister set off on an allegation that those things were being confused, that such confusion would be damaging and based the rest of his case on an entirely false premise. I wondered whether the noble Lord, Lord Avebury, was going to make that point before he drew to a close.
My Lords, I really do not want to get into this as a practice, but I want to make this plain. I am not suggesting that either the noble Lord, Lord Avebury, or the right reverend Prelate the Bishop of Winchester conflates those things, but others do. I wanted to make that absolutely clear. I am not prepared to accept that I do not have a duty to ensure that that confusion does not arise. As for the general thrust of the argument of the noble Lord, Lord Avebury, there is clearly a disagreement between us, although I of course recognise that people who come to this country for whatever reason and with whatever status have skills and talents. There is no question about that; I am sure that that is a shared view.
My Lords, as the right reverend Prelate repeated, the Minister's premise, with which he began his argument, was totally false. No one in this Chamber confuses economic migrants with asylum seekers. We leave that to the tabloids, who either have the paradoxical attitude that my noble friend has just mentioned—that asylum seekers come here to sponge and to live on social security benefits when, in fact, most of them would be only too delighted if they were given the right to work. We want to give them that right and we will see what is the opinion of the House on that matter.
Clause 19 [Points-based applications: no new evidence on appeal]:
19: Clause 19, page 12, line 22, leave out “, and at the time of making,”
The noble Lord said: My Lords, we had a discussion on amendments similar to these in Grand Committee, when the Minister was in his usual unreceptive mode in response to what we thought was a perfectly reasonable case for an exception to the general rule that under the points-based system, all the evidence has to be submitted at the time of the application. We recognised, and we do so now, the difficulty that had to be faced by the Home Office when confronted with evidence submitted on the day of the hearing, or close to it, which the presenting officer had no real opportunity to consider or respond to appropriately. But we drew attention to the AIT’s power to exclude late evidence under Rule 45(4) of the 2005 Procedure Rules.
We have now gone to the opposite extreme, making it impossible for an applicant to correct a miscalculation of the points or a misunderstanding of the points criteria. As we pointed out, this could be absolutely disastrous for a person who is applying to extend his or her leave to remain, such as a university student continuing her course of studies. As we pointed out, the Minister’s suggestion that the person whose application is refused because she has not submitted the required evidence should lodge a fresh application is almost always going to be a non-starter for those seeking any kind of renewal of leave to remain, because in the meanwhile their existing leave to remain will have expired and they can no longer meet the conditions. As we noted, the Home Affairs Select Committee suggestion of a “minded to refuse” stage would have dealt with the problem, but would require a radical redraft of Clause 19. The Minister ruled that out as adding to the cost and complexity of the appeals process.
I have one further suggestion, which I hope that the noble Lord will consider, and I would have put this to him if we had had an opportunity for a longer meeting during the Recess, which we were promised. This is that we apply the proposed amendments only to appeals against refusal of an extension of leave to remain, because that is where the greatest harm to a person’s future life and career may be caused by a simple mistake. I am not asking the Minister to give me an off-the-cuff answer to this proposal, but to take it away and think about it so that if we can agree, a mutually acceptable amendment can be put down at Third Reading. I beg to move.
My Lords, where I have a feeling that I can make a contribution to the Bill, I will make it, and where I do not, I will not. I broadly support the amendment. It is clear that the appeals system does not always work correctly. Where evidence is produced late, which is what the amendment is about, it needs to be considered at the same time where possible so that the ruling is not delayed. As my noble friend supported either this amendment or something similar in Grand Committee, we hope the Minister will be able to make some movement on this.
My Lords, Clause 19 will ensure that in appeals brought against refusals of applications made under the points-based system—PBS—the appeals system considers the facts that led to the decision being appealed. That will ensure that the appeal is not an opportunity for applicants to patch up failed applications with new evidence.
The amendments would negate the purpose of Clause 19 by allowing new evidence to be submitted in all PBS appeals, subject to the sole condition that the evidence must have been submitted no later than the notice of appeal. Under the PBS, applicants will be told in clear terms exactly what evidence they need to submit to qualify for points. It is therefore perfectly fair to expect them to submit that evidence with their applications. There is no reason why they should be able to submit it later in the process with their appeals, as the amendments propose.
Our processes for handling PBS applications provide for one decision to be made. If applicants want to provide further evidence and consequently expect us to make a second decision, they must pay our administrative costs in remaking that decision. The appropriate channel to do that is by making a new application, not by relying on the appeals system. The purpose of the system is, as it says, to decide whether the appellant’s application was correctly refused. Allowing new evidence would mean that the Asylum and Immigration Tribunal would be making its own decision on a totally different basis from that of the Border and Immigration Agency.
As drafted, Clause 19 contains enough safeguards to ensure that it is fair. For example, new evidence will be allowed to challenge an allegation by the Border and Immigration Agency that a piece of evidence is not genuine or to refute a reason for refusal that is not based on the acquisition of points. We contend that Clause 19 provides a clear and transparent appeal system to complement the clear and transparent points-based system. In our view, these amendments blur that clarity and must be resisted.
The noble Lord invites me to consider at a later point his suggestion for some other way of dealing with this matter. My officials and I will read Hansard and give that some consideration.
My Lords, I will have to be satisfied with what the Minister said in his concluding sentence. I honestly think that, when he and his officials look at this in detail, he will find that we are not driving a coach and horses through the system and allowing everyone to appeal at a late stage. We are trying to deal with a situation that he must acknowledge exists, which is that people can make genuine mistakes on the applications. For example, they can miscalculate the number of points that are required or they can misconstrue the criteria and therefore get something wrong in the application form. I hope that our amendment would allow those kinds of mistake to be corrected.
I recognise that we should not open the door to appeals by all and sundry. We should confine this, as I suggested, to those people who are not able to take advantage of the Minister’s suggestion that, if they have made these mistakes and the application is incorrectly formulated, they should start again with a new application and pay the second fee. My objection to that, as the noble Lord is aware from the previous occasion on which we talked about it and from what we have said this afternoon, is that someone who is applying for an extension of leave would, by the time that they put in a fresh application, be out of their permitted leave to remain.
This is of particular interest to people such as students or work permit holders who would not only forfeit their right to put in another application, but be effectively denied all future rights to remain here as students or workers, as the case may be. This is such an extreme penalty, as I hope the noble Lord will agree, that we ought to do something to correct it. If he can discuss the matter with officials and come back to us by Third Reading with suggestions on how we can deal with this evil, I shall be very satisfied. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Clause 20 [Fees]:
21: Clause 20, page 13, line 17, at end insert—
“(2B) In making regulations specifying the amount of a fee for a claim, application, service, process or other matter, the Secretary of State must—
(a) be satisfied that the increase is no greater than is required to maintain the value of the amount in real terms; and(b) in doing so, must have regard to the All Items Retail Prices Index Excluding Mortgage Interest Repayments published by the Office of National Statistics.””
The noble Lord said: My Lords, in Grand Committee we had some discussion about the level of fees charged for services provided by the BIA in consequence of Section 51 of the Immigration, Asylum and Nationality Act 2006 and Section 41 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and the extension of those charges under Clause 20 of this Bill to,
“an application or process in connection with sponsorship of persons seeking leave to enter or remain in the United Kingdom”.
In his reply, the Minister concentrated almost entirely on the universities, which were not the main focus of our concern, although we are of course anxious that the additional costs of sponsorship, which must no doubt be recovered from the students, should not be self-defeating by causing a drop in overseas student numbers and diminishing the economic benefit to this country of the presence of these students. It would take only a small reduction in the number of such students to wipe out any extra revenue that the Government hope to receive in sponsorship fees. However, the universities are capable of looking after themselves and will no doubt raise their voices if they consider that the sponsorship fees are over the odds.
The Minister said that the Government were obliged to consult on the fees and that, before the order was introduced in March, they sent the proposals to 3,000 people and stakeholder groups, as well as publishing the document on the Home Office website. He omitted to say that the document gave no indication of the level of the fees to be charged, and that the document appeared not to have been sent to spouses, family members or those representing their interests. I am not sure that the consultation included the Joint Council for the Welfare of Immigrants or the Indian Workers’ Association, but those organisations have written to me with numerous complaints about the levels of the March fees and, particularly, the fee for indefinite leave to remain, which, as I have told your Lordships in other debates, shot up from £350 to £750. Even if they had been consulted, they could have had no inkling that such an outrageous increase was to be imposed. It seems that the fees charged to students were relatively modest because the Government realised that they were capable of making a lot of trouble through Universities UK, while those charged to relatives and spouses were extortionate, based on a cynical calculation that those people and groups were not well organised or vociferous.
We want to prevent the Government mulcting spouses, entry clearance applicants, and applicants for transit visas and certificates of entitlement, as they have already done applicants for ILR. We also suggest, as I have in correspondence with Ministers, that we cease to pretend that the level of our fees is comparable with fee scales in other countries, and that we stop being so arrogant as to imply that British citizenship is worth more than Australian citizenship, as did Mr Byrne in a recent letter to me. The UK is certainly an attractive destination for tourists, students, workers and relatives, but that does not justify making them and their sponsors pay far higher fees to enter and stay than do other countries. I beg to move.
My Lords, I understand the background to the amendment and know that it arose from concern about the scale of increases to certain fees charged from April. Sufficient safeguards already exist in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which is amended by the clause. It requires the instrument that sets fees above cost-recovery level to be agreed through the affirmative process in both Houses. Before the statutory instrument that sets the fees is made, the Secretary of State is required to consult such persons as she deems appropriate. As the noble Lord, Lord Avebury, said, the consultation has been extensive. We held some 13 or 14 stakeholder meetings to underpin it.
The Act also requires that fees set above normal cost-recovery levels should reflect the benefits to applicants after a successful application. That is not an unreasonable criterion and it is right that we incorporate it in the Bill. It is important that the Secretary of State’s discretion, with the approval of Parliament, to set the fees at the appropriate level to recover the costs of a service provided should not be fettered by a limit on the percentage increase to a fee. There are a number of instances where an increase above inflation may be appropriate; for example, to correct an anomaly in the charging structure or, perhaps more importantly, to reflect wider policy changes affecting the benefits and entitlements offered through a successful application.
Whom did we consult? Migrants who might qualify for settlement are a disparate group with no key representative bodies with which we can engage in the same way as, for example, in the education sector. We recognise that that presents difficulties in ensuring that key policy changes are communicated effectively and in good time. We are exploring how we might do this differently in future. The consultation document was freely available on the BIA website and the UKvisas website, and we welcome responses from members of the public as well as stakeholder groups.
As for how new fees compare with other countries, international comparisons of migration systems and fees are complex—I think that most noble Lords would accept that—and do not always readily read over huge differences in the benefits to successful applicants. We believe that our fees compare very favourably; the entitlements that we grant with our various services are highly valued and, I would argue, bear any international comparison. Direct comparisons of price where that is the case can be difficult, because we cannot easily compare like with like. End-to-end migration costs vary considerably in all comparative economies and are usually dependent on the particular circumstances of the applicant, such as their current location, category of stay and relationship to the settled person. Visas can be for different lengths of time, allow more than one visit, confer particular entitlements to work or bring in dependants. So we believe that it is right to charge those who directly benefit from our services, but that we can also do so and keep the UK competitive as a destination for those whom we wish to attract. For all those reasons, I cannot accept the amendment.
My Lords, I welcome what the Minister said about improving the consultation process. I hope that he will particularly consider how he can bring in these hard-to-reach groups, particularly those concerned with sponsoring visits by intended spouses and other family members. I am sure that if he consulted the JCWI, for example, it would be helpful not only in responding to the consultation but in suggesting other organisations that represent the interests of family members. However, that whole process will be useless unless in the consultation itself some indication is given of the level of the intended fees.
The answers that people gave to the general questions in the previous consultation were not based on knowledge of how much was to be charged and the questions were phrased in a very general form—such as, “Do you think it’s reasonable for the Government to recover the costs that they incur in operating this system?”. Of course, the answer to that must be yes. On the face of it, all the costs that go into providing the services would make for a legitimate charge on the user. But if people thought that that meant that the existing charges were to be more than doubled, they might have a second thought about it. I hope that that notion will be taken into consideration in the consultation on the sponsorship fees.
With regard to the comparisons with other countries, I do not know whether the Minister has seen the detailed correspondence that I have had with his colleague, Mr Byrne, but he asserted as a matter of fact that our charges compared favourably with those in Australia. When I asked him to give me a comparison, that was the one that he chose. We have been through that in enormous detail, and the end-to-end comparison of the cost of a spouse coming in here with the cost for Australia is extremely unfavourable to us. The Minister sought to defend that by saying that there are enormous benefits to coming here, therefore implying that the benefits to a spouse entering Australia were not comparable to those when someone enters this country. I have just written to him saying that I do not really think that he could have meant to imply that we were so superior to the Australians that we were entitled to charge much more for the equivalent services than they do.
I look forward very much to further discussions on these points with Ministers. When the consultation document on the sponsorship fees is issued, I should be grateful if a copy could be sent to me so that I can comment on it. I very much hope that it will include the figures. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
22: After Clause 20, insert the following new Clause—
Where the procedure for an appeal is governed by the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (S.I. 560/2005), the Legal Services Commission shall provide funding as part of the Community Legal Service regardless of any assessment of the merits of the appeal for so long as those Rules continue to apply to it.”
The right reverend Prelate said: My Lords, this amendment seeks to ensure that asylum seekers whose claims for asylum are dealt with through the detained fast-track process at Harmondsworth and Yarl’s Wood can secure legal advice and representation throughout that process. I am particularly grateful to the Immigration Law Practitioners’ Association for raising this concern and to others who have written to me about it. Their concern comes from an awareness that standards of justice in the fast-track procedure are in danger of being inadequate. The amendment seeks to ensure proper legal representation in this process and in doing so to protect the judicial system with which we work in the asylum process.
Only some 50 per cent of appellants in the fast-track process are represented at appeal according to both Her Majesty’s Chief Inspector of Prisons and Bail for Immigration Detainees. There is agreement that it is important whenever possible for appellants to be legally represented and this is a problem in the whole asylum process. This amendment seeks to tackle it in one limited area where the dangers of injustice are particularly acute.
Many asylum seekers lose their right to legal aid through the merits test whereby the lawyer needs to assess that the appeal has a better than 50 per cent chance of success. In the fast-track system there is very little time to make that assessment effectively; typically, the decision needs to be made within a couple of days of the lawyer and client meeting. We are dealing with people’s lives and their whole future. We must make proper provision for their legal support in a complicated and, at this point, surprisingly speedy system.
Lawyers have a strong disincentive to provide this legal support. The Legal Services Commission has a performance indicator which expects lawyers to achieve a success rate on appeal of 40 per cent. Perhaps it is a good thing that we do not have such a merits test for amendments in this House. The failure to achieve that may prejudice a lawyer’s chance of bidding for such work in the future. The Asylum and Immigration Tribunal can do its work only if people are properly legally represented. The number of unrepresented people in such tribunals is increasing and many of them are unable to access the safeguards which are designed to provide due process for them. This very simple amendment would enable lawyers to provide the service appropriate for such serious cases. It would defend the fast-track system against the accusation that it is simply a “refusal factory” and would affirm our desire for a legal system which provides the manifest justice for which we all look. I hope very much that it can be added to the Bill. I beg to move.
My Lords, we support this amendment and have experience, through talking to lawyers, of the difficulties that are faced with the fast-track process which result in many applicants remaining unrepresented. When the Minister comes to reply, it would be useful if he could give us some statistics on how many of the people going through the fast track actually get legal advice at all.
The merits test is part of a process which has been continued for some years of squeezing out of the legal aid system the money which is supposed to underpin a fair and reasonable asylum application process. If you make it far more difficult for people to get legal advice, a great many people will not succeed in meritorious applications. If the Minister had the time we could go into a number of cases I know of where people have been very poorly represented until the point where they were about to be sent back. Then a good lawyer has come in and rescued the case at the last minute. That cannot happen in the fast track, because by the time the good lawyer has appeared on the scene the person is back in the Democratic Republic of Congo, Somalia, or wherever. It is vital that we provide the same rights of access to good legal services in the fast track as elsewhere in the system. I hope that if the amendment is agreed to by the Government we will be able to do that.
My Lords, in passing, it would be especially serious if the applicant were back in the DRC or Somalia, because there they would be in grievous danger. The Government were returning people to the DRC until very recently and had to be stopped in the courts from doing so. The basic point at issue is, to put it in rather un-legal terms, that the faster the track the more critical the quality of the legal assistance. I hope the Minister will reflect on that when he responds.
My Lords, I shall add a word in support of the amendment. The right reverend Prelate has put it very well. He said that the cards are stacked against asylum seekers in the fast-track process. We have seen the decline of legal aid year on year, in parallel with what the Government are doing with this policy. It is simply unrealistic to expect an asylum seeker to follow the safeguards that the Minister is bound to mention in a minute within two or three days in this process. I would be grateful if he would explain how they are meant to do that.
My Lords, I am grateful to noble Lords for raising the issue as it enables the Government to set out our position and perhaps to clarify a few issues. The Government believe that to accept this amendment, which removes the merits test for those in detention, would contradict our aim of ensuring that public funding is targeted on cases with merit and that weak cases are not supported. We need to make the best use of limited resources by ensuring that only cases with merit are funded and that genuine applicants are adequately supported through the process. The merits test is common in the criminal justice system for legal aid; it is not unique to this process.
The merits test for representation at the tribunal has existed since representation at appeal and bail hearings was brought into the scope of legal aid in January 2000. For funding to be granted, the prospects of success have to be moderate or better, which is defined as clearly over 50 per cent, as noble Lords understand. However, in asylum cases, if the prospects of success and the merits of the case are borderline or unclear, funding can still be granted if the case has wider public interest or is of overwhelming importance to the applicant. Where a case has a poor prospect of success, the fact that making or pursuing an application or representations will in itself prolong a client’s right to remain in the UK will not be treated as a sufficient benefit to continue with public funding.
It is inevitable that in any system of merits testing there will be applicants with poor cases who do not receive publicly-funded representation. The Legal Services Commission’s guidance to suppliers on the fast-track scheme states that where the client’s substantive appeal lacks merit and would not warrant the grant of funding for the appeal, the case may still merit the grant of funding for a bail application. The Government recognise that individuals detained under the fast-track process will face particular difficulties in securing representation where we are processing an asylum application under an accelerated timetable. That recognition is there. To ensure that clients in the fast-track process have early access to quality legal advice and representation, the Legal Services Commission runs duty representative schemes at Harmondsworth, Oakington and Yarl’s Wood removal centres.
Fast-track advice is provided through exclusive contract schedules. Services are awarded in this way to those organisations that can demonstrate that they are able to offer the best service to clients through skilled and experienced staff, effective supervision arrangements and a good track record of audit with the Legal Services Commission. Only suppliers who have a Legal Services Commission contract and who have gone through an additional tendering process are able to provide publicly funded advice under the scheme.
The provision of advice in these cases covers the substantive case as well as any associated bail applications. In addition, there is provision for legal advisers to accompany clients to substantive asylum interviews and for the adviser to make a decision as to whether to grant legal aid funding for those in detention under the fast-track process. Onsite legal advice is available through regular advice surgeries open to all individuals who are detained in immigration removal centres in England and Wales. The purpose of the surgeries is to ensure that those in detention and who have not yet received legal advice, or who no longer have a legal adviser and who require advice, will be able to access advice through this scheme.
The noble Lord, Lord Avebury, asked how many individuals receive advice through fast track. We are satisfied that current agreements meet needs. As I have explained, we have a process in place—there is a fast-track duty rota system at Harmondsworth, Oakington and Yarl’s Wood. Therefore, fast-track clients do have early access to good quality legal advice. That scheme appears to be working satisfactorily. No scheme is perfect, but there is a proper merits test in place. I hear what noble Lords have said about fast track, but, as I have explained, we put particular emphasis on ensuring that the fast-track process is well supported through advice. For those reasons, it would not be appropriate for us to depart from our current practice and procedure in this regard. I hope that the right reverend Prelate will withdraw his amendment.
My Lords, I thank the Minister for his response and I was glad to hear his assurance that the Government recognise the need for particularly skilled staff to be involved in a fast-track scheme such as this. I am grateful, too, to other noble Lords who have taken part in this debate and who have spoken, as the noble Earl, Lord Sandwich, did, about the odds stacked against the asylum seeker in this respect, as is the case for others within the system. I thank the noble Lord, Lord Avebury, for his comments on the poor representation that can exist, even within the fast-track system.
I am interested that the Government are satisfied that the system is working as well as the Minister believes it is. The number of people who actually win appeals through the fast-track system is tiny, which is why the title of a “refusal factory” has come to be used by some with regard to the system. I hope that, perhaps in correspondence, we could do more to check just how the system is working and ensure that the Minister’s optimistic assessment of the situation is correct. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Children]:
23: Clause 21, page 13, line 29, at end insert “and their welfare is promoted”
The noble Baroness said: My Lords, these amendments have been drafted, like my previous amendment on safeguarding children, by the Refugee Children’s Consortium. The unfortunate and very close defeat on my earlier amendment on Tuesday has ensured that the Border and Immigration Agency will not be given a legislative duty to promote the welfare of children. We have heard nothing encouraging from the Government about inserting the duty into the code of practice, on which this amendment would insist.
I hope, however, that we can prevail upon the Minister to rethink his position on this. The importance of this duty has been much discussed during previous stages of the Bill, and the Government’s objections on the grounds that it would interfere with the agency’s ability to carry out its primary function have been effectively dismissed. I assure the Minister that we do not intend to give up our efforts on this and I hope eventually to extend this protection to cover the whole of the Border and Immigration Agency. We will be looking to raise this matter at appropriate points in the future.
I look forward to hearing again what the Minister has to say on Amendment No. 24 following his hint on Tuesday. I hope that, in this matter at least, the Government have decided to accept what the House was saying and address our concerns. I set out my thinking on this issue in the debate on Amendment No. 5 and I shall not go through those arguments again. Suffice it to say that it will be illogical and irresponsible if non-governmental organisations which provide government services are not held to exactly the same standards as government agencies.
The Minister gave us a copy of the high-level code of practice and we understand that this will be included in some way. I hope very much that he will be able to give us further reassurances on that this afternoon. I beg to move.
My Lords, as these amendments raise two issues that we discussed as recently as Tuesday, I can be very brief. We considered what the Minister said about the draft code of practice, which, as he acknowledged, was clearly marked as a draft, but we remain unhappy about the code for the reasons that we gave, particularly in the context of Amendment No. 24. It makes no reference at all to private contractors, who are carrying out some of the most crucial duties of the BIA, including, for example, detention and escorting, and we simply do not accept that Parliament’s right to approve the code by affirmative resolution gives us any worthwhile opportunity to scrutinise the code before it comes into effect.
I repeat—I hope that the Minister can answer this now that he has had 48 hours to reflect on the suggestion—that both this code and the Section 9 code should be made subject to pre-legislative scrutiny. It may not be our normal practice to do that with secondary legislation but, with so many sensitive functions of government now being dealt with by order, this would be an excellent example on which to trial the process.
This may not be the time to go into detail on the code but, as an example of matters that cause us concern, I could make some comment on paragraph 16, which deals with children being looked after under private fostering arrangements. As I understand it, the fostering arrangements would not be subject to the provisions of the code. In dealing with an adult who has arranged for a child to come to the United Kingdom, it should be asked what arrangements have been made for the child to be looked after in the UK, although that matter should have been sorted out when the visa was awarded. Satisfactory assurances should be given by the sponsor of the child that the fostering arrangements are in place, that they have been approved by the local authority and that the fosterer is a properly qualified person to fulfil that role. However, there does not seem to be any certainty either that the BIA will be notified of the fostering arrangements or that the local authority will have inspected them. These defects should be dealt with in the final version. I also suggest that the code should form part of the contract between the local authority and the person who is to provide the fostering arrangements.
I take it that the draft has been sent to the relevant professional and voluntary bodies, the LGA and the local authorities for comment. I ask the Minister to arrange, as has been done on other occasions, for a summary of the responses to be published so that they can be considered, preferably as part of the pre-legislative scrutiny process that I have suggested.
My Lords, I support Amendments Nos. 23 and 24 and I hope that the Government will be able to accept them. The phrase “safe from harm” in the clause feels grudging and is often used to refer simply to safety from and defence against physical and sexual abuse. The provision needs to be much broader. We are talking about some children who will be in this country for a considerable time. We have heard again and again about their needs. It is crucial that, through the ways in which we help children in the Bill, we provide the welfare that is the right of every child. Every child matters and it is crucial that we bring that into our concerns here. That includes, for example, the benefits of schooling and ways of helping children with their education so that their welfare is promoted here and for the benefit of the country to which they will go back.
My Lords, I thank those who have participated in the discussion, because important issues have been raised. I am particularly grateful to the noble Baroness, Lady Hanham, for tabling Amendment No. 24, which I will respond to, because it has prompted further thinking on our part.
I understand that the intention behind the amendments is to broaden the scope of the Border and Immigration Agency’s duty with regard to children so that it is as wide as the safeguarding duty in Section 11 of the Children Act 2004. The amendments would also impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency.
I made it clear on Tuesday that the Section 11 duty would not work for the agency. The House took a view on that. It might be a narrow view, but it was supported. It is not appropriate in our view for the agency to have a duty to promote the welfare of children because that creates a potential conflict with other duties that we have to exercise to regulate entry to the United Kingdom and to take action against those who have no lawful claim to be here.
The potential application of a duty to promote the welfare of children is very broad. If the Border and Immigration Agency were to adopt it, we have no doubt that it would be used as the basis of a legal challenge in many cases where the facts made it clear that someone no longer had a lawful claim to be in the United Kingdom. For those reasons I resist the amendment.
The story should not end there. As I explained, we take very seriously the responsibilities towards children in the Children Act 2004; hence the continuing development of the code of practice. We have already indicated what we are committed to introducing through such a code and we are open to—and expect—further development of that through consultation with interested groups. It will be supported by a set of instructions to staff, which are being developed with input from outside organisations that have considerable experience of dealing with children’s issues. We have been very grateful to those agencies and organisations for the work that they have put in.
I do not want to repeat what I have said about the content of the proposed code. However, I must emphasise that the Border and Immigration Agency will expect staff to follow the code of practice or, if they cannot, to have very clear reasons indeed for not doing so. Those instances must be very few.
I must also make it plain that we very much intend to take on board the comments made on Tuesday, particularly by the noble Lord, Lord Avebury, about the need to ensure that very clear principles on detention are written into the code. The noble Lord made an important point that, although the supporting documentation is very clear that the code applies to detention and the detention estate, we must write those principles in and ensure that the detention estate is clearly covered.
We recognise fully that we would not achieve what we have set out to achieve if we were to have a code of practice for the border and immigration staff with no way of ensuring that it applied to those providing services on its behalf. So we sympathise with Amendment No. 24, and I know that the Minister was particularly grateful to the Opposition for raising that issue when we had a private discussion. We see the need to make it clear that when contractors are commissioned to carry out services on behalf of the Border and Immigration Agency they have the same responsibilities towards children as the agency itself. I shall give that point further consideration with a view to returning to it at Third Reading. I reassure noble Lords that the code will not be a token document. In developing it further and introducing it, we will continue to work with the key NGOs.
The noble Lord, Lord Avebury, made one or two suggestions. I always listen with care to what the noble Lord has to say. I do not always agree, but some of his ideas we are of course happy to consider. One was that the code ought to be subjected to a sort of pre-legislative scrutiny process, which is a novel idea. We intend to consult on the code in a formal way over a period of three months. We could consider pre-legislative scrutiny, but we will obviously ensure that we comply with the wishes of the House more generally on that issue. I will give that more thought before Third Reading, but do not make a firm commitment this afternoon.
The noble Lord asked whether the draft code mentioned contractors. I have dealt with most of that issue: it does mention private contractors, both in the preface and paragraph 4 of the introduction. He also raised a question about private fostering and the BIA’s responsibility. Local authority children’s services are of course responsible for monitoring private fostering arrangements. The BIA very much relies on local authority expertise and on local authorities to notify it if arrangements and relationships are not working as well as they should. We would argue, however, that relationships between the BIA and local authorities are strong, and we are extremely grateful to local authorities for their expertise in this field. Speaking from my own experience, local authorities do a good job in difficult circumstances. We are grateful to them. For that reason, we continue to listen carefully to what the Local Government Association has to say on these issues. We have been grateful to it in the past for its advice. I might almost be currying favour here, but we have come some way towards meeting the aspirations of both Opposition parties on this issue.
My Lords, I thank the Minister; “one up and one down” is how I see this afternoon’s effort. I am grateful for his indication that we will come back to Amendment No. 24 at Third Reading; I hope that we do so with an amendment that is strong enough to ensure that other agencies are required to have the same standards as the BIA. We look forward to seeing that, perhaps a little bit beforehand so that we are aware of it.
I am conscious of the welfare duty because I have been a family magistrate for quite a long time. The welfare duty encompasses a whole lot of things, such as the care of the child, where it lives, where it is educated and who it has contact with; it encompasses a much wider field than, as the right reverend Prelate said, just keeping it away from harm. The trouble is that children are around within the detention system, I understand, for various lengths of time. In some cases, the safeguarding from harm might be appropriate, but in cases where it is longer their welfare becomes an extremely important aspect of this. The way to deal with the problem would be to impose the welfare duty, so that those there for a longer time would be encompassed by it. We have had one or two goes at this issue during our debates on the Bill and it is not something that will go away. I shall not press the amendment today, but I give strong notice that a number of us are concerned about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 24 not moved.]
25: After Clause 21, insert the following new Clause—
“Children of female British citizens
After section 2(1)(b) of the Immigration Act 1971 (c. 77) (statement of right of abode in the United Kingdom) insert—
“(ba) he would be entitled to be registered under section 4C of the British Nationality Act 1981 if the words “after 7th February and” had been omitted from section 4C(2); or”.”
The noble Lord said: My Lords, the amendment was introduced in Grand Committee to deal with an anomaly which has deprived a small number of people the right to British citizenship. I have taken particular interest in this because had I been born outside the United Kingdom, I would have been one of the people deprived of British citizenship by the anomaly.
The amendment does not confer citizenship on the people affected. That is because the Bill deals with immigration but not with nationality. An amendment to extend British citizenship would therefore be out of order. The amendment therefore confers on the beneficiaries not citizenship as such but a right of abode in the UK, which is probably the most important aspect of citizenship.
As I dealt with the background at length in Grand Committee, and because of the attitude which I understand the Government intend to take, I will give only a fairly limited outline of the legal background. Up to the end of 1948, a British woman who married a foreigner lost British citizenship if, on marriage, she acquired her husband’s nationality. Indeed, it was at one time the general practice that a woman, on marriage, always took her husband’s nationality. British men marrying foreign women retain British nationality.
Under the British Nationality Act 1948, which came into force on 1 January 1949, British women marrying foreigners no longer lost their citizenship on marriage and citizenship was restored to those who had lost it on marriage at an earlier date. There was, however, one remaining significant difference between the sexes. The children of a British husband and a foreign wife had the right to British citizenship, which they acquired on birth wherever they were born, but the children of a foreign husband and a British wife, if born outside the UK, had no right to citizenship.
Under the British Nationality Act, the Home Secretary had a discretionary power to register a child in that category as a British citizen, provided the child was under 18. That discretionary power was presumably intended for cases in which the mother was widowed, divorced or separated from her husband and wanted to return to the United Kingdom with her child and bring that child up here.
On 7 February 1951, the Government decided that any such application made on behalf of a child under the age of 18 would be accepted without question. There was, however, no formal change in the law and it was not retrospective. Children reaching the age of 18 before 7 February 1961 could not be the subject of an application.
The next step was the British Nationality Act 1981, which gave to mothers the same rights as fathers had always had to pass on their citizenship to their children. However, that applied only to children born after the 1981 Act came into force.
Then the Nationality, Immigration and Asylum Act 2002 amended the 1981 Act to backdate the right to citizenship given under the 1981 Act to all children born after 7 February 1961. That, in fact, was the result of amendments originally tabled by my noble friend Lord Avebury. I am extremely pleased that he has put his name to this amendment, as has the noble Lord, Lord Higgins, whose support I also welcome.
The amendment proposed by my noble friend Lord Avebury, in its original form, and this amendment would backdate the right to claim British citizenship to include children of a British woman born on or after 1 January 1949. The Government only partially accepted my noble friend’s amendment and were willing to backdate only for children born after 7 February 1961. No logical justification was produced by the Government, either in the debate on the amendment tabled by my noble friend Lord Avebury in 2002 or on this amendment in Grand Committee, to justify a cut-off date of 7 February 1961. There is some logical basis for a cut-off date of 1 January 1949, although there is also a case for going still further back—for example, by extending rights to those born before 1 January 1949 whose mothers were British citizens at the time because they had not acquired their husband’s nationality, or both to them and to children whose mothers were foreign citizens at the time of their birth but reacquired British nationality under the 1948 Act. However, it is not necessary to go into that issue.
The distinction between the rights of the children of British men and the children of British women with foreign spouses is an obvious anomaly. It is wholly contrary to modern principles of gender equality. The class of people adversely affected by the anomaly is small and closed; it can apply only to people in this category born before 6 February 1961, who must therefore be at least 46 years old by now and are, no doubt, well established in their home country, in most cases.
This is a unique problem, which would not set a precedent for any other claims to citizenship. The Government are not willing to accept the amendment, but I believe that they now recognise the existence of the anomaly and the need to deal with it. I wait with interest to hear what the Minister has to say. I beg to move.
My Lords, I warmly congratulate my noble friend Lord Goodhart on finally achieving a solution to a problem that has, as he pointed out, been canvassed on numerous occasions going back to 2002, when we raised it not only in respect of the NIA Act of that year but in detailed discussions with the then Minister, the noble Lord, Lord Filkin, in an attempt to find a way through.
We persuaded the Government then that the child of a foreign father and British mother born overseas after 7 February 1961 should have the right to be registered as a British citizen. However, we were not able then or since—until Monday of this week—to persuade the Government that discrimination against British mothers whose children were born before the cut-off date was wrong and illogical. Their right to transmit citizenship to their children was not equal to that of fathers who married foreign women, who had always had that right. Ministers kept repeating, as if it was an argument, the view that there had to be a cut-off point, as though that justified a situation in which children in the same family born before or after the cut-off date had different citizenship rights. As the noble Baroness, Lady Anelay, said in Committee, we were all struggling to hear from the Minister about the virtue that attaches to 1961. The Minister had no answer.
My noble friend Lord Goodhart suggested that there was at least some logic to a cut-off date of 1 January 1949, because nearly every woman who married a foreign citizen before that date took the citizenship of the husband. For that reason, as well as the additional passage of time, hardly any persons would benefit from an earlier date. I consulted the chairman of the organisation CAMPAIGNS, Mr Michael Turberville, who tells me that of the 300 people on his books only one was born earlier than 1949, and he had been resident in this country for some 40 years and therefore qualified to apply for citizenship.
We are delighted that the Government have at last come around to our point of view on the matter, and we welcome the assurances they gave in the Minister's letter of 9 October that the provision would be enacted as soon as possible—not by the indirect route, which my noble friend had to choose ingeniously to get within the Long Title, but by conferring full citizenship on these individuals even though it means that they will have to wait a little longer.
My noble friend said that how the law used women in this matter was contrary to the principles of gender equality, and his amendment had the support of womenkind. It prompts me to ask an additional question: will the Government now repeal our reservation on nationality to the Convention on the Elimination of All Forms of Discrimination Against Women, which it seems was entered into solely to protect us from complaints about this discrimination? I remind the Minister of the case of Mrs Constance Salgado, whose name I have mentioned in previous debates. She was barred from making a complaint to the committee on the elimination of discrimination against women simply because of the resolution that we entered to the convention.
Mrs Salgado married a Columbian citizen and lives in Columbia. I sent the Minister, Mr Byrne, a rather nice picture of Mrs Salgado and her son, who came to dinner with me recently. We were discussing this issue because she brought with her the son who was born before 7 February 1961 so is not a British citizen, whereas her younger son, who was born after the date, is a British citizen. Her family very neatly illustrates the paradox of the anomaly of this date.
I hope that the Minister will be prepared to consider—not perhaps this afternoon, but at his leisure—whether as well as introducing the legislation that confers citizenship on these people he will move towards the repeal of the reservation entered into on the convention.
My Lords, this is the third item of business on today's Order Paper on which I intervene. It may be thought that this displays my versatility, but I fear not. On the two previous occasions I might reasonably claim some experience, if not expertise; but one knows very well in your Lordships' House that to intervene in an area you do not normally speak on, when there is such great expertise in the House, is a dangerous thing to do, particularly when the noble Lords, Lord Goodhart and Lord Avebury, have spoken not only with expertise but with a history on this issue over very many years. Indeed, the history which was outlined by the noble Lord, Lord Goodhart, shows a kind of “Yes Minister” over the ages—that the Government have gradually given way little by little until we have ended with one final step to be taken. I very much hope that the Government will take it.
I was encouraged to take part in the debate today and in Grand Committee by a very passionate letter I received from someone in the category the noble Lord referred to. He is right in saying that the number of people in this category is very small, and that there are no significant financial or precedent problems as far as that group is concerned. The noble Lord referred to a letter in Grand Committee. The letter I received states:
“I have wanted British citizenship all my life. Citizenship, even right of abode, was denied to me for many years because it was my mother and not my father who was British. In 2002, the government added a section to the new immigration law meant to address this inconsistency. The new law allowed foreign-born children of British mothers to register as U.K. citizens. When I heard of the new law, I was overjoyed. But my joy was short-lived, as I soon learned that those of us born before 1961 were to be excluded. I was devastated”.
That remains the position. The noble Lord’s amendment would overcome that problem; it is right that it should. As he rightly points out, there is discrimination in this case not only on gender but, curiously, on age.
In reply to the debate on 18 July in Grand Committee, the Minister said that there was a principle that an adult seeking British citizenship should normally be able to demonstrate on the basis of his personal connections with this country why his application should succeed. Of course, the extent to which that qualification has been extended is the same in the case of someone born of a British mother as of a British father. There is no reason why, if they have a reasonable connection—one would have thought that the fact that one’s mother was British was a not unreasonable connection—and passionately wish to become British citizens, that should not be allowed.
In Grand Committee, the Minister was kind enough to suggest that we might discuss the matter further, and I appreciate the fact that I was able to have a brief meeting with him and a discussion with one of his officials, which was extremely helpful. I do not believe that there is any longer any justification for not taking the final step in this matter. I understand that the Minister is not unsympathetic to that idea and suggests that action could be taken in a so-called simplification Bill, which he envisages taking place fairly soon. That would most certainly be welcomed, particularly because the rules of order prevent us including British citizenship; the amendment covers only right of abode. Therefore, it would be better if it could be extended on the basis of citizenship, even though that may mean some delay. If that is the Government's attitude—no doubt the Minister will let us know whether it is—that is a considerable, even final, step forward.
I make only this final point. The letter to which I referred stated:
“We are seeking citizenship because Britain is the land of our mothers, and as such, is our motherland. This relationship is immutable and if we should all die without ever having been allowed to live in Britain, it will not be because we did not remain steadfast until the end in our desire to come home and our belief that our claim to be British by descent was warranted and genuine”.
The problem is, as has rightly been pointed out, that these people are getting quite old and there will obviously be some delay before proper rectification on the basis of citizenship can be made, so I hope that in addition to giving a forthcoming answer today, the Minister will say that in principle he understands that there ought not to be discrimination on the basis of either gender or age.
My Lords, there has been unanimity among those who have spoken and I understand that the matter was considered very firmly in Committee. I just add my plea that we should see this matter resolved one way or another. Clearly, the number of those born before 1961 will become fewer; nevertheless, their views are important. I hope that the Minister will be able to give the assurances that have been sought.
My Lords, I thank the noble Lord, Lord Goodhart, for raising this issue again, as it enables me to clarify and, I hope, resolve the matter once and for all. I am conscious that noble Lords know the detailed background, but for the benefit of the House it may assist if I set out some of the background from a Government perspective and explain why we have got to where we are and how we should now move forward.
Before 1983, British women were unable to pass on their citizenship in the same way as men, but there was discretion within the British Nationality Act 1948 to confer citizenship on any minor by registration. On 7 February 1979 the then Home Secretary announced that he would exercise this discretion in favour of any child of a UK-born mother who applied for registration before his or her 18th birthday.
We recognised that some will have learnt of the 1979 policy change too late to benefit from it. We therefore changed the law in 2002 so that a person can apply to be registered as a British citizen if he or she would have been registered in accordance with the policy announced in 1979, had an application been made while he or she was still a minor.
My Lords, that is one reason why I want to clarify things. The legislation therefore provided for the registration of those born after 7 February 1961. We were not persuaded that it was right to go any further than this, given the principle that an adult seeking to be granted British citizenship should normally be able to demonstrate his personal connections with this country and the fact that those who would benefit from any further relaxation of the requirements in the 1981 Act were at least 46 years old and could be well established elsewhere.
There has been pressure to change the law to allow those born before 1961 to benefit from this provision, which we have resisted on the grounds that there would always have to be a cut-off point, about which there has been some debate subsequently, and that those born before 1961 could not have benefited from the 1979 concession.
Although we have done much to right the wrongs of previous nationality legislation, the current position does not allow the adult children of British mothers the same rights to British citizenship as those of British fathers and we want to correct this. However, to give them a right of abode in the United Kingdom without citizenship is only a partial solution and not the way to put this right, as the noble Lord, Lord Goodhart, said.
This amendment would have a much wider scope than the current registration provision, as it would confer the right of abode in the United Kingdom on any person who would have qualified but for his or her date of birth. However, it is our view that the rights associated with British citizenship, including the right of abode in the United Kingdom, should be closely linked with British citizenship. We would not wish to create a category of people who held the right of abode without having acquired British citizenship. We would like to legislate to give British citizenship to those affected and so have committed ourselves to addressing this problem, as noble Lords already have detected, in a simplification Bill. Because of its wider scope, it will allow us to provide an avenue to citizenship for those concerned, rather than just a right of abode.
I have asked officials to give me an idea of how quickly we could right this wrong and ensure that this problem is sorted out. There will be a consultation which will begin before November. We expect, therefore, a draft Bill to be produced next summer. One would then normally expect a Bill to be introduced in November 2008. It is not in my gift to say what will or will not be in the Queen’s Speech in November next year, but that is an indicative timetable, and is as far as I can go.
I express my continued gratitude to all those who have worked on this. I first alighted on the problem when it rather hit me in the face at Question Time in your Lordships’ House, and I must say that I was left scratching my head, genuinely puzzled over how the situation could have arisen. I looked at what previous Ministers had had to say, but I could see that they were probably struggling as well. In fairness, we have come up with an approach that will work. This Bill is not the right vehicle because the issue does not fall naturally within its scope, I am also grateful that the major opposition party has thought about this as well and has given its support to other Peers who have raised the issue. We have now reached a satisfactory conclusion.
Just one outstanding question that was raised by the noble Lord, Lord Avebury, is left to answer. He asked whether we would now withdraw our reservation to the Convention on Nationality. That is a fair point. We will look into this—
My Lords, I understand what the reservation relates to. We will look into these issues in the context of considering the legislation, but I cannot give an absolute commitment today. I am grateful to the noble Lord for raising the issue. That said, I hope that the noble Lord, Lord Goodhart, will feel able to withdraw his amendment.
My Lords, I am most grateful to the Government, and particularly to the noble Lord, Lord Bassam, for having reconsidered their earlier position. I recognise that my amendment is a second best, because for the reasons which have been explained, it cannot confer citizenship, and therefore this Bill is not the right vehicle for removing the anomaly. My remaining concern is that of the timetable. I hope very much that it will be possible to have the new legislation in force during the present Parliament, particularly as it is now unlikely that a general election will be called before May or June 2009 at the earliest. There is a real possibility here, but I am aware that slippages can occur in the timetable for legislation. Given that the people who will be affected by this are pretty well into middle age by now, I hope that the prospect which has been opened up by the Government will not be darkened by undue delays. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
27: After Clause 21, insert the following new Clause—
“Detained children: guidelines and information
(1) The Secretary of State must publish guidelines specifying the maximum length of time during which a child may be detained under any provision of the Immigration Acts.
(2) The guidelines under subsection (1) may specify different periods of time for—
(a) children of different ages;(b) children originating from, or due to be returned to, different countries;(c) children falling into different classes as specified in the guidelines.(3) By 31 March of each year, the Secretary of State shall publish an annual report detailing:
(a) the number of children detained during the previous year whose detention lasted up to—(i) one week; (ii) two weeks;(iii) one month;(iv) three months;(v) six months;(vi) one year;(vii) a period longer than one year.(b) the number of times each of those children was detained;(c) following their release from detention, the number of children in each year—(i) who were removed from the United Kingdom;(ii) who were granted permanent leave of residence;(iii) who were granted temporary admission;(iv) whose destination falls into any other category to be determined by the Secretary of State.(4) For the purposes of this section—
(a) “child” means any person who has not reached the age of 18 years at the commencement of the year to which the relevant annual report relates;(b) “year” means a calendar year.”
The noble Earl said: My Lords, this amendment would require Her Majesty’s Government to publish guidelines specifying the maximum length of time spent by children in detention within the immigration system and to publish regular updates on the number of children being detained, the length of their stay, their previous detention and what becomes of them when they leave detention. The purpose of the amendment is to probe the Government a little and to elicit further information from them, thereby increasing transparency. The Minister said in Committee:
“We want to ensure that children are detained only where absolutely necessary”.—[Official Report, 23/7/07; col. GC161.]
In the past, a few children have been detained for unacceptably long periods despite various apparent protections such as ministerial authorisation for detention. We were reminded of this by the noble Lord, Lord Judd, at our previous sitting when he told us that some children are still being held for a month to two months, and some for even longer than that. There are only a few but, still, they are being held. The purpose of the information is to be aware of how the Government are performing and to express our concern as soon as performance begins to slip, if it does.
In Committee the Minister said that the Border and Immigration Agency is considering ways to improve the statistical information available on the detention of children. I have recently heard from the Minister, Liam Byrne, who gave me a little more information, and I would be grateful for any news of further progress on that review.
The Minister was asked in Committee how many children had previously been detained, and to indicate whether some children will have been in and out a number of times. He replied:
“I do not have that information, and I do not think it is”
“It is not frequently the case that people come in and out of detention. It may well happen from time to time, but I do not have data on it. I will see what further information we can provide”.—[Official Report, 23/7/07; col. GC 161.]
Perhaps he would be good enough to write to me with that information if it is available.
I hope circular detention happens infrequently. I have met but a few detainees on past visits, but at least one of them had had that experience. It would be helpful to have further reassurance. I look forward to the Minister’s response. I beg to move.
My Lords, the noble Earl never ceases to be vigilant in his defence of the rights of children, and he commands enormous respect on all sides of the House for the work he does. His demand for guidelines on the length of time children can be detained and the publication of more detailed statistics on the use of detention should therefore be carefully considered. The statistics now being published quarterly are better than nothing but they give only a snapshot at the end of the quarter, and we know from debates on previous immigration legislation that when Ministers wanted the information for a particular occasion, the BIA or its predecessor had no difficulty in producing it.
There seem to be indications in the latest quarterly figures that fewer children are being detained for shorter periods. If that is so, it should be that much easier to keep track of them and produce the information the noble Earl seeks. I would sooner that he had suggested it as part of the quarterly statistics rather than annually, because then if there were changes in the frequency or length of children’s detention, they would show up earlier and would allow Members to seek explanations by question or correspondence with Ministers.
I also agree with the noble Earl that more precise guidance should be given to the BIA on when to detain and for how long, though I am not sure it can be pinned down in precisely the form the noble Earl requires. Listening to the Minister on Tuesday, one might have thought that the criteria for detention were already sufficiently narrow, were it not for the fact that we all know of cases where the criteria have been grossly and flagrantly violated, even when repeated appeals were made to Ministers to intervene. That is the difference between policy and practice that has been referred to so frequently in your Lordships’ discussions on the Bill. The case that always comes to my mind is that of Jacqueline Konan and her daughter Thelma, on whose behalf I begged the then Minister, Beverley Hughes, and the Immigration Service 13 times to release them, without effect. It was only when they finally got competent advice from a new firm of solicitors that not only was she released and she won her case, but she was also awarded substantial damages by the High Court for wrongful detention over the major part of her incarceration in Harmondsworth.
The Minister said on Tuesday that children were detained only for a few days prior to removal with a view to making arrangements for their care by a local authority as members of a family, where it was considered likely they would abscond, or as part of the fast-track asylum process. But the fact that some children have been detained for very long periods indicates that adherence to those criteria needs to be more closely scrutinised. That is where I think we should look for better safeguards, rather than trying to attach particular numbers of days to given circumstances. There is a rule that Ministers have to approve the detention of children beyond a certain point, but they exercise that responsibility without proper parliamentary oversight. That is a gap in our armoury of protection.
In his letter of 26 July, dealing with matters raised in the fifth Grand Committee sitting, the noble Lord said that from March 2004 to July 2007 Ministers had declined to approve continued detention beyond 28 days in 14 cases only. If Ministers were obliged to place anonymised copies of their decisions to approve continued detention beyond the 28 days in the Libraries of both Houses, with a note on the reasons for their decisions in each case, we would be able to evaluate the process and assure ourselves not only that the declared purposes of children’s detention were being strictly observed but that, wherever possible, alternative arrangements were being made.
My Lords, I am certain that my noble friend will not accept the amendment; it is not difficult to make that reckoning. However, I urge him to get the message, which is very clear. I congratulate the noble Earl on his deep commitment to these matters and on once again having challenged the House.
I simply make the point that either children are central to our policy considerations or they are not. If children are central, each individual child matters. They are not just statistics. At all stages in the treatment of children, when they are confronted with officialdom, a primary concern in the ethos should be, “Here is a child caught up in this situation; what are our responsibilities to this child?”. I do not believe that we begin to fulfil that ethos unless we are prepared to get on record exactly what we are doing and how it is being done.
The noble Lord, Lord Avebury, made the point again—it has been made in our deliberations on previous amendments—that there can be a big difference between policy, genuinely and sincerely made with real commitment, and its application. That means that one has to win the ethos; one has to win the commitment of people at all levels. If one is to do that, people need to know what is required of them.
My Lords, I, too, give wholehearted support to the amendment of the noble Earl, Lord Listowel. I do so for a number of reasons. The first concerns transparency. We have heard today a dispute over numbers, but there would be no dispute if we had a record of how many were actually in detention. We should also know their ages. There is a great difference between a two year-old and a 17 year-old. In our discussion of the Section 9 evaluation, 219 minor dependants were mentioned. Were these teenagers or were they children of pre-school age? We do not know. Our ability to make policy that is positive is hindered by our lack of knowledge. We would be able to act in a far more focused way if we knew the ages of these children and possibly—I do not know how we would do this—their level of development or attainment, as children in different circumstances develop at different paces. The amendment is the beginning of something valuable and I am pleased to support it.
My Lords, this amendment would establish guidelines to specify the maximum time for which a child could be held in immigration detention and would enable the guidelines to allow children to be detained for varying periods depending on age or the place to where the child was being returned. The guidelines would also specify different time limits for detention for children falling into “different classes”, although the amendment does not make clear what this could include. The amendment would also require the Secretary of State to publish an annual report detailing the time that children spend in detention and what happens to their cases.
In Grand Committee, I explained that the Government are confident that robust arrangements exist to ensure that the detention of children is kept to the minimum. We have made it plain on many occasions, most recently in discussions surrounding the draft EU returns directive, that we cannot accept a fixed upper time limit on immigration detention, whether for families with children or single adults. Our position has remained consistent.
A fixed time limit would be out of step with longstanding UK law and policy and go beyond the requirement of Article 5 of the ECHR. A fixed upper limit, or fixed upper limits, which the noble Earl, Lord Listowel, suggested should vary depending on the age of the child or on where the child is being returned to, would only encourage families to delay immigration and asylum processes, including the frustration of lawful removal attempts, in order to reach a point where they would be released from detention. That is simply not acceptable.
The amendment, as it relates to children of different age groups, would have implications also for families with children of mixed ages. Individuals and families are detained for only as long as is reasonably necessary to achieve the purpose for which detention was authorised, which in the case of families is most usually removal from the UK. What is reasonable will vary from case to case, and the actions of parents prolong their detention.
I appreciate the concern that lies behind the amendment, but we cannot have a situation whereby families with children are automatically released from detention at a particular point. We are required to ensure that any detention lasts for as short a time as is necessary. That is extremely important in the case of families with children. In practice, the vast majority of families with children are detained for a small number of days prior to removal. Therefore, in practice, we already go some way toward meeting the main aim behind that part of the amendment.
Furthermore, the amendment would impose a requirement on the Secretary of State to publish an annual report relating to matters concerning the detention of children. As I explained in Grand Committee, to require the presentation to Parliament of a report on all children detained as a result of the agency’s activities would be extremely resource-intensive and would serve no practical purpose given the short period of detention for the majority of children and the safeguards that we already have in place to ensure that detention lasts for no longer than necessary.
A system of ministerial authorisation for the detention of children beyond 28 days was introduced in December 2003 to ensure oversight. In the relatively rare event that detention is protracted, the outcome of a thorough process of assessment and consideration is reflected in advice which the immigration Minister receives. On the basis of that, he decides whether detention should continue.
The assessment and monitoring processes ensure that issues relating to the welfare of the children detained are identified and addressed. The asylum bulletin publishes the number of people detained under immigration powers on the last Saturday of each quarter. Statistics on the number of persons recorded as being removed from the UK on leaving detention each quarter also are published in the bulletin.
I understand the concern about the detention of children and I share the aspiration for transparency. We share those concerns, which is why we have introduced the measures that I described. The noble Earl moves his amendment with good heart. We have gone some way to addressing his concerns. However, the unintended consequences of the amendment and the onerous nature of the statistical grubbing-around that it involves mean that he seeks to impose on us an impractical framework. For that reason, I hope that he will withdraw his amendment.
My Lords, I thank the Minister for his careful reply to my amendment. I am grateful to the noble Lords, Lord Judd, Lord Roberts and Lord Avebury, for speaking in support of its principles. I recognise the difficulties of which the Minister spoke, but the children to whom the amendment would apply are in a vulnerable situation. I understood in Committee that a review of how statistics on them are kept was taking place. If further information on that is available, I would be grateful to hear it from the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
27A: After Clause 21, insert the following new Clause—
“Immigration control: age assessment by ionising radiation
No person claiming to be a child shall be subjected to ionising radiation for the purpose of age assessment in connection with immigration control.”
The noble Lord said: My Lords, I certainly hope that the Minister will not avoid the responsibility of giving me an answer on this amendment on the grounds that it will be dealt with in the plan of action following the consultation on UASC, which is now not going to appear until the end of November, even though the report on the consultation was originally promised by the end of August.
While I can just about understand the Government’s need to work out some of the details regarding the specialist authorities, the technical problem of age determination is a self-contained issue that could be settled independently of the general framework of the procedures for dealing with UASC. Although the Minister appeared to think that I was suggesting that dental X-rays should be used subject to guidelines, let me say again, as the wording of the amendment should make crystal clear, that I oppose the use of ionising radiation for the purpose of age determination, full stop. The guidelines I was talking about in my speech on 18 July were those developed by the London boroughs of Hillingdon and Croydon, which have been approved by the courts, and contain no mention of X-rays, as I would have thought the Minister's brief would have told him.
The use of X-rays for age determination was stopped on 22 February 1982 by the then Home Secretary, Mr William Whitelaw, as he then was, following a report by my office, published in June 1981. The matter has been reviewed by Ministers once since then, in 1996, when there was correspondence between John Horam MP at the Department of Health and the late Baroness Blatch at the Home Office, when Mr Horam reaffirmed the stance taken in 1982. In 2003, the Royal College of Paediatrics and Child Health reaffirmed that it is inappropriate for X-rays to be used to assist in age determination for immigration purposes, and in response to the UASC consultation, this was again confirmed by leading professional opinion, including particularly the Children's Commissioner, Sir Al Aynsley-Green, himself a noted paediatric endocrinologist.
It is unethical to use X-rays for non-clinical purposes just as it was in 1981—nothing has changed since then—and any supposed improvements in the accuracy of the process are irrelevant. As far as I know, the accuracy is still plus or minus two years, but that is for middle-class American children on whom the original work was done, and there are no base statistics on children coming from the main countries of origin, such as Somalia or Afghanistan, let alone on the adolescent populations of those countries. There are no averages or standard deviations of the measured characteristics of the children in those countries against which measurements of particular asylum seekers could be compared. The whole idea of assessing age by looking at the physical characteristics of unmeasured populations is bad science, worthy of an article by Mr Ben Goldacre in the Guardian.
In our last debate, I referred the Minister to Dr Heaven Crawley’s analysis on asylum, age disputes and the process of age assessment, published by ILPA, and I hope that he has had the opportunity of reading that work, in which the use of X-rays is condemned but alternatives are developed. I sometimes wonder whether the consultations in which the Government engage are genuine, or designed to arrive at conclusions that they have already pre-determined. In this case, the overwhelming majority of expert professional opinion is against the use of X-rays, reasonable alternatives have been developed, and the proposal should be dropped. I beg to move.