Monday, 7 February 2011.
Arrangement of Business
My Lords, before the Minister moves that the first order be considered, I remind noble Lords that in the case of each statutory instrument the Motion before the Committee will be that the Committee do consider the instrument in question. I should perhaps make it clear that the Motions to approve the instruments will be moved in the Chamber in the usual way. If there is a Division in the House, the Committee will adjourn for 10 minutes.
European Union (Definition of Treaties) (Stabilisation and Association Agreement) (Republic of Serbia) Order 2011
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the European Union (Definition of Treaties) (Stabilisation and Association Agreement) (Republic of Serbia) Order 2011.
Relevant documents: 13th Report from the Joint Committee on Statutory Instruments.
My Lords, the stabilisation and association agreement is a mechanism that has developed to cope with the many problems of the states in the former Yugoslavia. The international agreement between Serbia and the European Communities and its member states was signed on 29 April 2008. The treaty has not yet entered into force but will do so once Serbia, the EU and all 27 member states have approved it in accordance with their own procedures. Fourteen EU member states have ratified the SAA so far, as well as Serbia, which ratified on 9 September 2008. With regard to the EU ratification, the European Parliament gave its consent on 19 January this year and a further unanimous Council decision will be required in order for the EU to conclude the SAA. The order is a necessary step towards the UK’s ratification of the SAA as it will provide for implementation of the SAA as an EU treaty.
The principal effect of the draft order is: first, to ensure that the powers under Section 2 of the European Communities Act 1972 will be available to give legal effect to any necessary provisions of the agreement; and, secondly, to permit any expenditure arising from the SAA to be charged on and issued out of the Consolidated Fund.
Enlargement has been one of the European Union’s biggest success stories, enabling stability, security and prosperity across our continent. The prospect of EU membership was an important factor in supporting the peaceful transition to democracies in Greece, Spain, Portugal and central and eastern Europe. It is a vital tool in helping us to spread our values and freedoms. A larger EU promotes business and our economy by providing access to a bigger market with reduced trade barriers.
However, enlargement must be based upon conditionality. A country may join the EU only once it has met all the criteria for membership and has undertaken the necessary reforms to do so. That applies to Serbia and all western Balkans countries, as it does elsewhere. Serbia must adapt to the required EU conditions, not the other way round.
The implementation of the SAA is an important step in the fulfilment of that conditionality. The SAA recognises Serbia as a “potential candidate” for the EU. It is not a reward; instead it is an instrument to enable Serbia to move forwards. It sets out key objective political and economic criteria which Serbia must meet. That progress towards eventual EU membership is regularly monitored via a closer partnership with the EU, under the EU’s stabilisation and association process. A track record of SAA implementation is one of the requirements for Serbia to move further towards achieving full candidate status.
Full, effective, and transparent implementation of democracy and the rule of law is an example of the criteria that Serbia will have to meet as an essential condition of the SAA, and for eventual EU membership. Others include good co-operation on regional issues with its neighbours and international obligations, conformity with common human rights law including the protection of minorities, and full co-operation with the International Criminal Tribunal for the former Yugoslavia—the ICTY. I underline that last point. Serbia’s interim agreement and SAA were signed by EU member states at the General Affairs and External Relations Council on 29 April 2008. However, a decision was taken at the same time to block the implementation of the interim agreement and the ratification procedures of the SAA pending member states’ assessment that Serbia was fully co-operating with the ICTY.
Following successive positive reports from the ICTY’s Chief Prosecutor Brammertz, member states agreed to proceed with SAA ratification at the European Council in June 2010. The UK’s assessment is that Serbia is still continuing to co-operate fully with the ICTY, as confirmed by Chief Prosecutor Brammertz’s latest report in December last year. We are therefore content that the UK should proceed with ratification.
Since the conflicts of the 1990s, Serbia has made significant progress, particularly in establishing good relations with its neighbours. This needs to continue. The draw of European integration will continue to be a crucial factor in motivating and enabling Serbian political leaders to continue to agree and implement the necessary reforms and to continue with the process of reconciliation with the rest of the region. The European Union without the western Balkans would for ever have a disillusioned and disenchanted hole near its centre.
I am satisfied that the order is compatible with the rights contained in the European Convention on Human Rights. I beg to move.
My Lords, Her Majesty’s Opposition strongly support the EU stabilisation and association agreement process with the countries of the western Balkans. We recognise that the measure before us is a stepping stone to Serbia’s possible eventual membership of the European Union if, as the Minister has stressed, the criteria are met. Regional co-operation is clearly an important part of that process and must continue on a satisfactory basis. We agree that it is important to support the process of peace building in the region and that the agreement is an important building block for future co-operation among those countries.
As I understand it, the period over which the agreement will run is for a maximum of six years. During that period, it is anticipated that there will be regular political dialogue and a commitment to promote regional co-operation and good relations. The agreement pledges support to,
“democratic, economic and institutional reforms”.
As the Minister said, Serbia must adapt to the EU’s conditions, not the other way round. That reinforces the message of conditionality.
What mechanisms does the Minister envisage for this regular political dialogue? Will that regular political dialogue be with the European Commission or with the European Parliament or with the Council of Ministers, including Ministers from this country? Further, what support for democratic, economic and institutional reforms does the Minister have in mind under the agreement? Will that be financial support for building up these institutions? Will such financial support, if it is forthcoming, come from the European Union directly, or will it involve a United Kingdom contribution—if so, can the Minister tell us what that contribution will be?
One might be a little more confident if the Minister could tell us something about the possible involvement of non-governmental organisations, including human rights organisations, at either EU or United Kingdom level. I notice that the Explanatory Memorandum to the order states that,
“this instrument … will have no impact on business, charities or voluntary bodies”.
If that implies that there will be no direct contact with, for example, British non-governmental organisations or British business, that is something of a gap in the sort of dialogue that we would hope for. After all, the stress is not just on Government to Government: it is very much on the institutional and the economic reforms. We on these Benches think—and I am sure that the Committee would agree—that that sort of dialogue should involve our NGOs and the business community.
My last question concerns the last point that the Minister raised on the ICTY: that Foreign Office Ministers would ensure that Parliament is kept informed. Will the Minister tell us how it is proposed that such information will pass from the ministerial desk to your Lordships' House?
My Lords, the Liberal Democrats also support this stabilisation and association agreement with Serbia. I recall that it is about 17 years since I found myself in Republika Srpska trying to get on a bus along with chicken farmers and various other internally displaced people in the west Balkans to go to Belgrade in order to find out what the Helsinki Watch committees in Belgrade were trying to do at the time, when human rights were so severely repressed. It was a searing experience. The people of Serbia have gone through nearly two decades of difficulty since then. It is right that this approach is followed now to bring them into the broader community of nations in the European Union.
The order provides the EU and Serbia with a political and legal framework for mutual relations, which has contributed to making access negotiations more robust, as my noble friend pointed out. This will, if Serbia co-operates in fullness and humility, make the fact of accession a tangible reality.
Other than agreeing with the order, will my noble friend reassure us on two or three counts? He said that Serbia was co-operating fully, but we know that the Dutch maintain the veto against this order because of their experiences in Srebrenica and their lack of confidence in the Serbian Government that Ratko Mladic and Goran Hadzic will ever be delivered to the International Criminal Tribunal for the former Yugoslavia. While there may be full co-operation, it is odd to see that full co-operation does not deliver the arrests of war criminals. Can we be reassured that the British Government are assisting the Serbian security and military authorities in training or other measures such as intelligence co-operation to help locate these war criminals and bring them to justice in The Hague?
Our other concern is about the domestic reform agenda. We know that levels of corruption in the bureaucracy are extremely high in Serbia and that political reform of the relationship of political parties to Members of Parliament is desirable. They are a long way away from attaining the democratic standards that we would expect in a European Union country. Press freedoms are still rather restricted and journalists continue to be intimidated and harassed. The situation of gay people leaves a lot to be desired and there is still an undercurrent of homophobia in Serbian society, which the Government do not seem to be tackling in any kind of robust framework: they appear to be tolerating rather than tackling it. The status of the Roma people is, of course, as bad as it can be in some parts of eastern Europe.
There are those reservations. The measure is a stepping stone, as the noble Baroness, Lady Symons, said, on the way to achieving accession in the longer term for Serbia. On that note, will my noble friend tell us what he thinks of the timetable for accession? I understand that Serbia is hoping that it might be completed by 2014 or 2015, but there are still major obstacles that we need to overcome in that regard.
My Lords, I thank both noble Baronesses for their contributions. We all recognise that this is a process whereby Serbia has a number of targets to meet on the way to what we hope will be a full membership. Noble Lords will be aware that Croatia is a long way ahead and that we may well indeed be dealing with a Croatian accession treaty within the next 12 months or so. We very much want the other states of the western Balkans to follow Croatia down that line. As I said in opening, there is no question but that our security depends upon the effective integration of the western Balkans into the European Union.
I was asked a number of specific questions. The European Union is of course providing financial support through a number of programmes. The United Kingdom contributes primarily through those but there are also bilateral channels. When I was at the London School of Economics I taught one or two people from Serbia who were on Chevening scholarships, for example, so there is a range of other channels through which assistance is given.
On political dialogue and monitoring, the European Commission is responsible for monitoring although embassies in Belgrade also participate. They report back to the European Council and the Council of Ministers on how they see things happening on the ground. The last time I was in Belgrade, I was very impressed by the quality of the British embassy and the active way that it engages with Serbians inside and outside the Government there. I also visited a Serbian NGO that had direct links with British NGOs, which seems highly desirable. Wider contacts across civil society, including universities as well as NGOs, are part of how we reintegrate Serbia into European democratic society.
Progress on the International Criminal Tribunal for Yugoslavia is slow, as we all know. We do not know whether the two charged Serbs are still in Serbia or Republika Srpska or whether, as with the Croatian war criminal who was arrested in Minorca or Majorca, they are now way outside the country. We are contributing to training Serbian security forces and the best information that we have, from all those concerned, is that Serbia is continuing to co-operate to the best of its ability with those inquiries. There will of course be full information for Parliament when there is progress. I dare say that if any of them is arrested, the News of the World will have got hold of that even more quickly than us and published it.
The security and co-operation agreement will help to tackle homophobia. The whole process is concerned with raising the level of awareness of broader civil liberties issues. That is very much part of the ongoing dialogue between the Commission, the European Parliament, national Governments and the local authorities. Ratifying this agreement does not imply that we have in any way solved all these issues. Having answered all those questions, I reassure the noble Baroness, Lady Symons, that the Foreign Secretary and the European Minister will continue to write to the respective scrutiny committees after each report from the ICTY and from Mr Brammertz.
I conclude by recommending the SAA and by hoping that Serbia now takes advantage of it and moves forward. I am sure that the SAA does not have a time limit of six years but will operate for six years in the first instance. Many of us would be very happy if Serbia has become an accepted candidate for the European Union before the end of that six-year period, but that depends on Serbia meeting the conditions to which this SAA introduces it.
Legislative Reform (Civil Partnership) Order 2011
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Legislative Reform (Civil Partnership) Order 2011.
Relevant documents: 4th Report from the Regulatory Reform Committee.
My Lords, this order was laid before the House on 25 October last year under negative resolution procedures with an Explanatory Memorandum as required for all statutory instruments. The Delegated Powers and Regulatory Reform Committee, under the chair of the noble Baroness, Lady Thomas of Winchester, considered this draft reform on 10 November 2010 and concluded that the proposal met the tests set out for LROs in the Legislative and Regulatory Reform Act 2006, that it was appropriate to proceed as an LRO and that the negative procedure was appropriate in this case.
However, when the Regulatory Reform Committee in the other House considered the draft on 9 November 2010, it concluded that, although the draft order is uncontroversial—all statutory preconditions and tests have been met—and would not prejudice any existing protection, the proposals contained in the LRO were more than a de minimis change in the law, so the order should be raised to the affirmative resolution procedure.
Section 210(1)(b) of the Civil Partnership Act 2004, in specifically designating that the registration officer must be a UK-based diplomatic officer, does not allow for flexibility in those consular sections within an overseas British post where there are no longer any UK-based diplomatic officers and where civil partnership registration is a service that can be provided. The FCO has been going through a programme of localisation, including regrading of staff. Where there has previously been a consular officer who is a member of Her Majesty’s Diplomatic Service, in some posts there are now only locally engaged staff, and for consular customers resident in such consular districts, we can no longer undertake civil partnership registrations as often as we did previously.
The change in the order will allow locally engaged non-diplomatic consular officers, at any post that is affected by the localisation programme, to be nominated to undertake the registration of civil partnerships and civil partnership ceremonies. The amendment will not affect other aspects of civil partnership registration overseas, which can be undertaken only if local authorities do not object. This will also address two current disparities. First, staff of equal seniority have different powers. Depending on the local circumstances, a consul or vice-consul may be a Diplomatic Service officer or a local member of staff. For example, the vice-consul in Tokyo can undertake this work while the vice consul in Sydney cannot just because one is a member of the Diplomatic Service and the other is a member of the local staff. Secondly, Parliament empowers local members of staff to conduct marriages but, at present, does not empower local staff to conduct civil partnerships.
I am satisfied that the order is compatible with the rights contained in the European Convention on Human Rights. This order is important but, I trust, non-controversial. I hope that it will receive the full support of the Committee.
My Lords, I want to contribute briefly to the discussion on this proposed order because I think I am right in saying that I am the first Member of your Lordships' House to enter into a civil partnership, as I did nearly 5 years ago. I regard it as one of the most progressive and forward-looking steps that we, in this country, have taken over the course of the past decade or so.
The order is wholly welcome. It makes a relatively minor and sensible change in enabling the performance of a civil partnership ceremony to take place where consular staff are locally drawn, rather than originally based here in the UK. This will enable more civil partnerships to take place. It is therefore a very good thing.
However, the debate enables us to reflect on the interesting table attached to the order and its Explanatory Notes that set out the status regarding civil partnerships in a whole range of different countries across the world. There are of course some countries where homophobia is not only rife but encouraged at the moment. We have only to think of some of the very distressing occurrences in Uganda recently to know that that is the case. Sadly, I suspect that it will be many years before we are able to see civil partnerships performed for British nationals in Uganda.
There are many countries across the world, some of which are full members of the European Union, where British nationals resident in that country would not be permitted to perform a civil partnership ceremony under the auspices of the British consul. I hope that the Government will continue to make representations to those Governments where we might have a degree of influence, either through common membership of the European Union or from old Commonwealth ties, to ensure that a more progressive and liberal approach to the possibility of civil partnerships is gradually taken in some of these countries. It would be very interesting to hear from the Minister exactly what steps are being taken in that respect.
Having said that, I believe that this order is entirely welcome. I fully support it. It is a sensible measure and I am very pleased that the Government are bringing it forward.
My Lords, on behalf of the Liberal Democrats, I, too, am very happy to see this order. Perhaps I may say that this is the most sympathetic, human and humane Explanatory Memorandum to any parliamentary document that I have ever seen. I was very impressed at the account of what some individuals did to assist the situation using free time in their diaries. I suspect that the high commissioner who was so helpful in Brisbane is well known to Members of this House. I would have expected no less of her, but it was nice to read about it.
Like the noble Lord, Lord Smith, I, too, am concerned about the wider issue. I appreciate that the Minister is not in a position to do more than make sympathetic noises to these representations. Nevertheless, it is right that we should do so. I was almost as much as anything dismayed at the list of countries in the table which did not reply, but which it was believed would object. That says a great deal.
I hope and would encourage the Government to work as far as they can at the recognition of civil partnerships in those countries. The UK recognises a number of overseas same-sex partnership schemes across and beyond Europe, but this is not widely reciprocated. This order is extremely welcome.
My Lords, my contribution has been largely pre-empted by what my noble friend Lord Smith had to say. The Committee will not be surprised to learn that Her Majesty's Opposition fully support the order. It is a sensible flexibility to the current arrangements and a real advance for those who would otherwise have to travel long distances in order to register their civil partnerships. It is important to recognise that in one sense this is part of a series of changes in the devolution of powers in the Diplomatic Service to locally engaged staff. We have seen that particularly in commercial sections and increasingly in consular sections in our embassies, high commissions and consulates throughout the world.
In the coalition’s business plan for the Foreign and Commonwealth Office, there is a clause that says that the coalition Government will continue to slim down consular services across all our embassies, high commissions and consulates. Does that mean that the Minister envisages that, increasingly, locally engaged staff will undertake work that has heretofore been undertaken by members of the Diplomatic Service?
My question is similar to that posed by my noble friend in relation to those countries where same-sex relationships are currently illegal. Can the Minister tell us in what countries we are actively engaged in discussions with their Governments on that point? There is a rather more subtle point as well. In a number of countries in the world, same-sex relationships are not necessarily illegal but are not necessarily welcomed by a number of institutions. What training of locally engaged staff are Her Majesty's Government undertaking in this respect so that those who might have misgivings about officiating at same-sex civil partnerships not only are made to feel comfortable themselves but do not make those who are engaging in civil partnership ceremonies feel uncomfortable when they come for such an officiation?
I noted that during the consultation period, Stonewall and others responded to the order in an entirely positive way. I also remind the Committee that this was something begun under the previous Labour Government and I would therefore expect spokesmen on this side of the Committee to give it full support. Will the Minister engage in the slightly wider point about the devolution from the Diplomatic Service to locally engaged staff of other forms of consular activity?
My Lords, I thank all those who contributed to the debate. I will start by responding to the point on locally engaged staff. Yes, it is part of the FCO's business plan to slim down consular posts where possible and reduce costs by taking on more locally engaged staff. I take the point that there are some delicate tasks that locally engaged staff may need to be sensitised to with reference to a range of the issues that they have to deal with in consular posts. I promise to write to the noble Baroness on that issue.
We all recognise that, on the whole question of civil partnerships, we have all been moving forward slowly over the past generation. If one goes back far enough, the law in Britain was pretty closed on these issues. A number of other countries are moving forward much more slowly or are further behind us on the curve. Our predecessors in government—and we continue to do the same—have been pushing to encourage others to move further. My notes say, for example, that the posts that were unable to offer civil partnerships as a result of moving to locally engaged staff included posts in Japan, Australia, Portugal, Austria and Ireland. However, this is no longer a problem in Portugal, Austria and Ireland because, in the past 18 months, they have changed their domestic legislation so the problem no longer arises.
As noble Lords have remarked, there are still other members of the European Union that have not got that far. The previous Government’s Europe Minister, Chris Bryant, wrote to Denmark, Germany and Slovenia, each of which has its own legal recognition on same-sex relationships but does not recognise UK partnerships. Denmark replied to suggest that, as a result, it will amend its legislation to recognise UK civil partnerships. Replies from Slovenia and Germany are still pending. He also wrote to all EU member states that do not have their own civil partnership legislation to ask for permission to conduct civil partnerships in our posts overseas where at least one half of the couple is a British national. Latvia, Cyprus and Bulgaria have replied to say that they do not object as long as their nationals are not involved. Estonia and Poland have said that they continue to object. We have not yet heard from Romania, Lithuania, Malta, Italy, Slovakia or Greece, but all are presumed still to object. We are currently consulting the Government Equalities Office on next steps.
I have a note which says that the training given to local staff will be the same as is currently provided to Diplomatic Service staff. Staff guidance is also being updated so that staff have this additional point of reference. It may be of interest to the Committee to know that the figures I have on the countries in which civil partnerships have most often been registered show that Australian posts come out at the top, then those in Vietnam and then those in Japan. After that, for some reason, it is Colombia. Please do not ask me to explain in detail why it should be those countries; others may wish to investigate.
Having said all that, I recommend this proposal for approval. It is a necessary and highly desirable change that will take this country a little further forward to the goal of becoming an open, liberal society.
Misuse of Drugs Act 1971 (Amendment) Order 2011
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Misuse of Drugs Act 1971 (Amendment) Order 2011.
Relevant Documents: 13th Report from the Joint Committee on Statutory Instruments
My Lords, I beg to move that the Committee considers the draft Misuse of Drugs Act 1971 (Amendment) Order 2011, which was laid before Parliament on 10 January. If it is made, this order in council will bring two new drugs, tapentadol and amineptine, under the control of the 1971 Act and clarify the legislation on mephedrone. Tapentadol is a recently developed, centrally acting analgesic or painkiller, which is likely to be marketed in the UK in the near future following licensing by the Medicines and Healthcare Products Regulatory Agency, or MHRA.
The effects and risks associated with tapentadol are similar to those of other opioid analgesics, including hydromorphone and morphine, which are both controlled as class A drugs under the 1971 Act. Tapentadol presents a risk of addiction, diversion from legitimate sources and potential medicinal misuse. The risks associated with an overdose of tapentadol are constriction of the pupils, vomiting, loss of consciousness, seizures, difficulty in breathing and a risk of serious complications likely to lead to death.
Amineptine, on the other hand, is a powerful and fast acting antidepressant whose misuse has been reported mainly in Asia and Europe. In 2003, the Commission on Narcotic Drugs, on the recommendation of the World Health Organisation, decided to include amineptine in Schedule II to the Convention on Psychotropic Substances of 1971. As a signatory to the 1971 convention, the UK has to schedule amineptine under the 1971 Act to meet its international obligations.
Clinical studies indicate that amineptine has the potential for both dependence and misuse, predominantly in patients with a previous history of substance misuse. The withdrawal symptoms associated with amineptine include anxiety, psychomotor agitation and insomnia. Instances of dependence have been reported in Asia and Europe. The Government have consulted the advisory council as required by statute for both drugs, and in July last year it provided advice on tapentadol and amineptine following consideration of their harms. The advisory council reports that there is no evidence of licit or illicit use of tapentadol or amineptine in the UK. However, it supports the control of both drugs due to the potential harm associated with them. The advisory council also recommends that tapentadol and amineptine are controlled under the Misuse of Drugs Act—in class A and class C respectively—and Schedule 2 to the Misuse of Drugs Regulations 2001. The Government have accepted its recommendations.
The Committee will recollect that mephedrone and other cathinone derivatives—a group of so-called legal highs—were brought under the control of the Misuse of Drugs Act 1971 as class B drugs from 16 April 2010, with cross-party agreement in the final days of the last Parliament. If it is made, the latest Order in Council will also clarify the legislation on mephedrone, subsuming it within the generic definition used to control other cathinone derivatives at the time. Under current drafting, there can be uncertainty surrounding whether Article 2(a) or 2(b) of the 2010 order amending the 1971 Act is applicable to a given sample when preparing a charge for offences relating to mephedrone. The amendment will remove that uncertainty and ensure clarity and consistency for prosecutors, enabling all charges for the possession, supply and production of mephedrone to be prepared under the generic definition in paragraph 1(aa) of the 1971 Act.
This Order in Council, if it is made, will ensure that while honouring its obligations as a signatory to the 1971 UN convention, the UK will also be taking precautionary measures, based on the assessment of harms and the potential for misuse highlighted by the advisory council, by controlling tapentadol and amineptine under the 1971 Act.
There will be no designation order in the case of the two new drugs we seek to control through this Order in Council, as both drugs have legitimate medicinal uses. However, it is intended to make two further related statutory instruments which will be subject to the negative resolution procedure. The misuse of drugs designation amendment order 2011 will amend the Misuse of Drugs (Designation) Order 2001, subsuming mephedrone within the generic definition in the order. The misuse of drugs amendment regulations 2011 will similarly amend the Misuse of Drugs Regulations 2001, bringing mephedrone within the generic definition in the 2001 regulations and including tapentadol and amineptine in Schedule 2 to the 2001 regulations. Those instruments will be laid so as to come into force at the same time as the Order in Council, if it comes into force as proposed.
The Government will publicise the approved law changes on tapentadol and amineptine and the clarification of the legislation on mephedrone through a Home Office circular.
My Lords, I am sure we are all grateful to the noble Earl for his remarks in introducing this order. The scientific evidence and advice on which the Government have acted is very clear and I welcome the Government’s action. The first two provisions in the order follow advice from the Advisory Council on the Misuse of Drugs. A letter about tapentadol from Professor Les Iversen of the Advisory Council on the Misuse of Drugs in July 2010 concludes that the abuse liability of the drug would be substantial and has the potential to cause social harm through diversion and addiction. Measures for amineptine were also on the recommendation of the advisory committee, which supports that drug being controlled under the Misuse of Drugs Act 1971.
The Explanatory Memorandum discloses that no consultation has taken place on this and that the Minister’s department has concluded that it is not necessary or beneficial so to do. The noble Earl will be aware that the Merits Select Committee has suggested that this Committee should satisfy itself that the review processes for the changes are sufficiently robust. I invite the noble Earl to respond to that comment of the Merits Select Committee.
In relation to these first two drugs, I take this opportunity to thank Professor Iversen and his advisory committee for the extremely valuable work that they do. The Minister has also explained that the changes in the draft order about mephedrone will not affect its classification. It is, and will remain, a class B controlled drug. The proposed clarification is simply a technical change in the legislation to make it more straightforward for prosecuting authorities to prepare charges. That seems extremely sensible and the Official Opposition are glad to support the proposal.
It is only a few months ago that mephedrone was brought under the control of the Misuse of Drugs Act 1971 as a class B drug. As has been explained, the paperwork accompanying the order makes it very clear that these drugs are harmful and dangerous and, in addition to legislative controls, a series of actions is required going beyond law enforcement and embracing prevention, public health and education. I would be grateful if the noble Earl could say something about what progress has been made on these fronts since the drug received the classification last April.
I would also like to ask the Minister about the impact of the proposed changes to the National Health Service on public health programmes in relation to this and other drugs. In so doing, I should refer to my declaration of a number of interests of mine in healthcare, declared in the House of Lords register of interests.
I understand that many useful public health programmes in relation to drugs are organised and funded locally by primary care trusts. The noble Earl will be aware that, under legislation now in the other place, primary care trusts are due to be abolished, with most of their public health functions being transferred to local authorities, alongside ring-fenced funding. Perhaps the noble Earl—if not today, but in writing—can assure me that his department will work very closely with the Department of Health and CLG to ensure that the budgets for drug prevention work, which are currently held locally, will be protected and that local authorities will be strongly encouraged to be proactive in that area.
I, too, am happy to support this order. I would like to follow up the questions asked by the noble Lord, Lord Hunt of Kings Heath, on consultation. The Merits of Statutory Instruments Committee referred in its report to amineptine having been dealt with by the Commission on Narcotic Drugs as long ago as 2003. That is quite startling. I am sure that the noble Earl will have been briefed as to the reason for the delay.
I also want to ask about the reference in the Explanatory Memorandum to consultation not being necessary. One might say that it is or is not, but at least one would understand it. I simply do not understand why consultation may not be “beneficial”, which is the term used in paragraph 8.1 of the Explanatory Memorandum. When is consultation not beneficial? I hope that the noble Earl can find an answer to that perhaps more philosophical question.
I am grateful for the helpful response from all noble Lords in this short debate. I think that the most important point to be made is about consultation, which, of course, is necessary. But it is achieved in a variety of ways, including the Advisory Council on the Misuse of Drugs talking to the manufacturers of drugs, particularly of tapentadol, and to the medical health care regulatory agency. Of course, we keep all these matters under review.
The noble Lord, Lord Hunt of Kings Heath, asked me some NHS questions which I think he would agree were rather wider than this order, which is concerned with avoiding harm from therapeutic and recreational drugs. But I will draw our debate to the attention of my noble friend Lord Howe.
As regards mephedrone, there are frank website discussions about its dangers. Ministers have written to organisers of summer music festivals. There is also the student campaign promoting the message that just because something is legal, that does not make it safe. There are ongoing campaigns to educate people of the danger of so-called legal drugs.
Approval of this order will ensure that the UK continues to meet its international obligations and that our drug laws are effective in relation to newly developed pharmaceutical drugs entering the UK market. Controlling these drugs will ensure that the necessary regulatory framework is in place to protect the public from the potential harms associated with these drugs. We will continue to highlight that mephedrone is harmful and that it remains a class B drug, monitor the trends and the misuse of the drugs being proposed for control, and assess the impact of the controls introduced by this order.
Perhaps I may come back to two points that I made, which may have sounded a little flippant but were serious. The first concerns the delay since 2003, and the other the reference to consultation not being beneficial. If my noble friend Lord Attlee cannot answer these now, I should be grateful if he would write to me with a copy circulated to other Members of the Committee.
My Lords, I never said that the consultation would not be beneficial. I said that it would be beneficial, but that the impact assessment—to which I think my noble friend referred—or the Explanatory Memorandum said that it would not be necessary. It was not necessary or beneficial because of the ACMD process, the activities of the MRHA and consultation with the manufacturer.
I did not answer her question about why it has taken so long for the UK to control amineptine when it was scheduled under the UN convention. Amineptine came to light following an audit carried out to ensure that the UK was fulfilling its international obligations. As soon as this came to light, the Government consulted the ACMD, as required under the Misuse of Drugs Act 1971, and, following its advice, have moved swiftly to bring amineptine on to the 1971 Act. However, at no time during this period were the public exposed to any risks from this drug, as amineptine has never been available or licensed in the UK. The ACMD has confirmed that there was no evidence of illicit use of amineptine in the UK. I hope that that answers my noble friend’s questions.
My Lords, as regards consultation, the noble Earl, Lord Attlee, has been helpful. I think he is saying that the advisory committee and the MHRA have gone through their own public consultation procedures and that therefore it is not necessary to do so again. Perhaps he could confirm that. In an otherwise very clear Explanatory Memorandum, it would have been helpful if that point had been raised.
I am obliged to the noble Lord, Lord Hunt of Kings Heath. He is absolutely right.
Immigration and Nationality (Fees) Order 2011
Considered in Grand Committee
Moved By Earl Attlee
That the Grand Committee do report to the House that it has considered the Immigration and Nationality (Fees) Order 2011.
Relevant Documents: 14th Report from the Joint Committee on Statutory Instruments
My Lords, the order concerns the charging for visa, immigration and nationality services and will enable the UK Border Agency to specify applications, processes and services for which it intends to set a fee. I thank all noble Lords who will take part in this debate. Specific fee levels will be set in separate legislation—using the affirmative procedure—that will be brought before the House in due course. Noble Lords will have the opportunity to ask searching questions about the level of fees in that debate.
In accordance with our legal powers, the order will carry forward our existing powers in the Immigration and Nationality (Fees) Order 2007 and set out the new provisions for which we intend to charge fees in future. The order will also transfer powers currently set out in the Consular Fees Order 2010 from Foreign and Commonwealth Office legislation to Home Office legislation so that all visa, immigration and nationality fees are handled in the same place. This will improve intelligibility for all customers, practitioners and corporate partners and will help address concerns raised previously in this House about the need for consolidation of such powers.
The order will allow us to charge fees in support of new services. For nationality applications, this includes the registration as British citizens, under amendments to Sections 1(3A) and 4D of the British Nationality Act 1981, of children born to foreign or Commonwealth parents who are serving as members of the Armed Forces. Previously, children born overseas to a foreign or Commonwealth parent serving outside the UK as a member of the Armed Forces had to wait until their return to the UK before they could acquire British citizenship. The order will also apply to those children born to a foreign or Commonwealth parent serving the UK Armed Forces who register as British citizens. As children born in the UK to a parent who is serving in the Armed Forces automatically become British citizens, both these changes will provide equality of treatment to the children of foreign or Commonwealth personnel irrespective of when or where they are born. The changes also represent action by the UK Border Agency on its commitment to enhance the immigration and nationality rights of Armed Forces personnel and their families.
The order will also provide a power to charge for requests for endorsements to amend the personal details on a previously issued national certificate.
In addition, some people are entitled to hold the status of British protected person through their connection with a former British protectorate, protected state, mandated territory or trust territory. Although this status can no longer be obtained automatically, people can apply for this sort of British nationality if they meet the appropriate criteria.
Students who were granted leave under tier 4 of the points-based system between 31 March 2009 and 4 October 2009 are currently required to advise the UK Border Agency when they are seeking to change their educational institution. Other tier 4 migrants apply and pay a fee to cover the cost of making such a change to the terms of their leave. We think that it is right that all students are treated equally in paying this fee. The order will provide that consistency.
The order will also allow us to charge a fee for highly trusted sponsor status at a level independent of the standard licence fee. This is an optional service for sponsors of tier 4 students under the points-based system. Currently, we charge the relevant sponsorship licence fee for such services. As we continue to develop service propositions for these sponsors, we believe that it is sensible to separate these provisions to ensure that we can set fees—subject to future parliamentary approval through the affirmative resolution procedure on the specific amounts—that better reflect the nature of the services provided.
Our power to charge fees for visa, immigration and nationality applications, processes and services is currently derived from the Immigration and Nationality (Fees) Order 2007.
The 2007 order has been amended twice since it came into force. Moving forward, however, to ensure that there is only one fees order in place under Section 51 of the Immigration, Asylum and Nationality Act 2006, we are consolidating the 2007 order and its amendment into this order. That will improve the intelligibility of our powers, as I mentioned earlier.
We will continue to ensure that fees for immigration and nationality demonstrate that the UK is open for business and retains its position as an attractive destination. We welcome the economic, cultural and social contribution made by legal migrants to the UK. As I said, we will return to Parliament in due course to debate further regulations under the affirmative procedure specifying the fee levels that rely on the powers in Section 51 of the Immigration, Asylum and Nationality Act 2006 and additional powers in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, as amended.
The order provides a basis for the sustainable immigration system that noble Lords all want and I commend it to the Committee.
My Lords, I am sure that the Committee is grateful to the noble Earl for his clear introduction to the Immigration and Nationality (Fees) Order 2011. As he explained, the draft order enables the Secretary of State to set fees for applications related to immigration or nationality and to charge for the provision of services or processes related to immigration or nationality. Once this draft order comes into force, the Secretary of State will be able to make regulations setting out the relevant fees and charges.
That is fair enough. But what lies behind this seemingly reasonable approach is the immigration policy of the Government, which is causing serious concerns and can best be described as a complete shambles. The fact is that the Labour Government’s points-based system would have been a far more effective means of controlling non-EU migration rather than an arbitrary and inflexible cap. It is clear that the Government’s cap policy was not thought through properly. It certainly did not get the scrutiny that it deserved. Not only will it do little to control immigration, it is clear that the Prime Minister's flagship election promise to bring net immigration down to the tens of thousands has now been watered down from a firm pledge to just an aim.
Only an hour or two ago, the House passed the Budget Responsibility and National Audit Bill. It is worth referring to the comments of the Office for Budget Responsibility in November. It said that the Government’s immigration cap will make no difference to net immigration levels:
“The interim OBR’s June Budget estimates of trend growth estimates were based on an average net inward migration assumption of 140,000 per annum … Since June, the Government has announced a limit of 21,700 for non-EU migrants coming into the UK under the skilled and highly skilled routes from April 2011, a reduction of 6,300 on 2009 … At this stage, we judge that there is insufficient reason to change our average net migration assumption of 140,000 per year from 2010, which remains well below the net inflows of 198,000 seen in 2009”.
However frail the Government’s migration policy is, it is inescapable that enormous pressure is to be put on the UK Border Agency by the reduction in its budget of up to 20 per cent in real terms over the next four years. That feeds through into a reduction in staff of around 5,200. Cutting the number of border officers and staff by such an amount raises questions about the effective security of our borders. We seem to be seeing the noble Earl’s department desperately scrambling around trying to raise money through the use of the order. How much, it is impossible to say, as no details are given in the order or the Explanatory Memorandum and no impact assessment has been made. My understanding is that the reason for that is that the information will be made available alongside the regulations made in reliance upon this instrument. However, it is at least likely that the Home Office must have some indicative intent as to what income the fees will be expected to raise and I would be grateful if the noble Earl would inform the Committee of any details that he may have.
I would also like to follow on from the previous debate on the misuse of drugs by asking about consultation. We are informed that a full consultation was undertaken in September to December 2009, with a low response rate and support for a flexible fee policy. Has there been any further consultation since that took place?
Sitting suspended for a Division in the House.
My Lords, I apologise for keeping the Committee waiting. I had an enormous opportunity to think up some more questions but, alas, the excitement of the vote rather inhibited me from doing so.
In his introductory remarks, the noble Earl mentioned that when the orders that will follow come to the House, they will be subject to certain scrutiny in relation to the fees. In relation to those subsequent orders, will there be full consultation before they are brought to the House?
I would finally like to ask him whether he can explain how he thinks the UKBA can be expected to carry out its crucial duties effectively when having to take out such a huge amount of people and finance. If he says that this is to be a more efficient use of the way in which the UKBA organises itself, and that there will be no impact on front-line UKBA services, I would be grateful if he could give me a definition of what he might mean by front-line services. He will be aware that I put down a Question to the Government on 1 December about the definition of front-line services in relation to police forces. As of today, that was still unanswered. It is the only Question that is still unanswered in your Lordships' House from before Christmas. A delay from 1 December to nearly mid-February is not very much to the credit of the Home Office. I realise that he is not answering such questions today, but I think that it would be helpful if he could give a definition of front-line services.
My Lords, my questions follow a number of those that were raised by the noble Lord, Lord Hunt of Kings Heath, although I will not follow him on the desirability or otherwise of the changes to the Immigration Rules—or on the definition of front-line services in the case of Labour Party research on police numbers.
However, as I am confused about this—I apologise to the Committee if it is utterly clear to everyone else—I will ask my noble friend Lord Attlee whether this order lays the ground for changes to the Immigration Rules which Parliament has not yet agreed and has not yet had sight of. The answer may be that the rules which we will be asked to agree are a mixture of the same sorts of provisions as are in place at the moment but that they will be a different mix. I am unclear and slightly uneasy at the prospect of being asked to agree a structure for fees if this is related to the new rules themselves.
I should also be grateful if my noble friend will give us an assurance that moving fees relating to immigration and nationality matters from the consular fees order to regulations under the 2006 Act provides us with exactly the same level of scrutiny as has been available under the arrangement which is being superseded.
In terms of the substantive comment, there are a couple of matters on which I should like to have a word. As regards students, we are told in the Explanatory Memorandum that a student moving between institutions is currently not charged for the, let us say, visa—I am not quite sure of the status of the permission—and for the UKBA’s consideration of that. We are told that the order will enable—a term used throughout—fees to be imposed for the request to change institutions. I take it that the word “enable” means that there will be a fee. My comment is that, although I share the view expressed by consultees that it is right that the taxpayer does not bear the whole of the cost of this service, overseas students nevertheless bring a lot of money and potential good will with them. I feel a little uneasy—
Oh! The result of the Division in the House makes me feel even more uneasy. I also feel a little uneasy about the prospect of charging such students more.
With regard to the new provisions explained in paragraphs 7.3 and 7.4 of the Explanatory Memorandum, will the Minister say what thought has gone into allowing fees to be charged to provide “a route to … citizenship” for children born outside the UK to members of our Armed Forces? It seems to me to be pushing it a little to charge members of the Armed Forces for this. I hope that the Minister can amplify the thinking behind that.
My Lords, I thank all noble Lords for their considered response this afternoon.
The order concerns itself with the ability to set the fees. The noble Lord, Lord Hunt, used somewhat flamboyant language to describe our current immigration policy. Clearly we shall have to look forward to our discussions in the coming months, when he can table suitable Motions and Questions to explore his concerns further. However, I understand them; I am listening to similar concerns being expressed right around the House, and I will discuss these issues with my honourable friend Mr Damian Green tomorrow. I will use a lot of the noble Lord’s speech, when I read it in Hansard tomorrow, as my starting point. We can also look forward to the Oral Question on immigration next week; I am sure that the noble Lord is. There will be plenty of time to discuss all the issues in the detail that we want.
The level of fees will be set by further orders. Where the fees are above the level required for cost recovery, there has to be an affirmative procedure. Where the fees are lower than necessary for cost recovery, there will be the negative order procedure, but we intend to make sure that we can discuss all the fee levels together.
Some 2.5 million people are looking for work, many of whom have key skills to offer employers. There is more reason now than ever to limit economic migration. We are fully aware that we will not meet our target of reducing net migration to the tens of thousands by looking at economic routes alone, so we are looking at all the main immigration routes. We will also consult on changes to the marriage route and entitlement to settle in the UK, to make settlement a less automatic prospect.
I was asked how we decided the level of the limit. The MAC recommended a reduction of 6,300 visas in 2011-12, which we accepted. Applying that reduction to our 2009 baseline of 50,000 tier 1 and tier 2 visas results in an overall limit for 2011-12 of 43,700. However, the 2009 baseline includes 22,000 ICTs. As they have been exempted and need to be excluded from the baseline, that gives an overall limit of 21,700.
The noble Lord, Lord Hunt, asked what additional consultation had taken place since 2009. The UK Border Agency published results of the last full consultation on fees in January 2010. That consultation established the principle that the agency should charge flexibly to take into account wider policy aims, and 90 per cent agreed. Since then, we have engaged with the task forces representing the Armed Forces, education, employment, arts and the entertainment sectors.
The noble Lord also asked about the impact assessment and specific fee levels. We expect to raise £829 million from fee income in 2011-12, but that is only 36 per cent of the UK Border Agency costs. The noble Baroness, Lady Hamwee, touched on whether the fees covered all the UK Border Agency’s costs; clearly, they do not. We will publish a full impact assessment when we lay the subsequent fee regulations, which will be brought before the House through the affirmative resolution procedure.
The noble Lord, Lord Hunt, mentioned much of our immigration policy. The Government believe that Britain can benefit from migration but not uncontrolled migration, which places unacceptable pressure on public services. We can reduce net migration without damaging our economy. We can increase the number of high-value migrants—the entrepreneurs, the investors, the research scientists—at the same time as we reduce the total number of people coming into Britain through economic routes.
The noble Lord asked broadly what the UK Border Agency is doing to ensure that the effect of any increase is minimised. The agency has committed to cutting its budget by up to 20 per cent in real terms over the next four years. That is the economic situation that we are in; that is the reality. The UK Border Agency is cutting overheads by more than a third over the spending review period. The agency will save around £500 million in efficiencies by reducing support costs, boosting productivity and improving value for money from commercial suppliers. The agency is determined to ensure that applicants pay more of the costs of running the agency, with taxpayers paying less. That will ensure that we can continue to provide the excellent service that noble Lords would wish.
The noble Lord, Lord Hunt, asked about the definition of front-line services. We will provide a written response to that as soon as possible. I apologise for the delay in providing that information, but I will personally look into this with the Home Office.
The noble Baroness, Lady Hamwee, asked about the Armed Forces nationality fee. It is fair that, rather than the taxpayer, those seeking a benefit from the application should meet the costs of the consideration. A person or their parent makes a choice on whether they wish to register as a British citizen, so they accept that it involves the payment of a fee. Enabling a choice to be made also ensures that the person can make decisions regarding any other nationality that they may hold.
The noble Baroness also asked about the possibility of pricing out students. We remain committed to maintaining the UK as an attractive destination for work, for study, to visit or for cultural visits. We recognise that migrants make a valuable contribution to the wider British economy and continually monitor our fees to ensure that they remain competitive with similar endorsement types offered in other countries. We believe that our fees remain competitive, particularly when one considers them alongside the entitlements which are offered to successful applicants. We also need to ensure that the charging system is fair to those who use the system and fair to the UK taxpayer, who will continue to support the immigration system that brings benefits and enrichments to this country. The fees that we charge are neither designed nor expected to deter migrants from choosing to come to the UK.
We will return to Parliament in March with regulations under the affirmative procedure to ask for approval of the regulations that will detail the fee levels for the visa immigration and nationality services covered by this order. The Committee should be assured that the brightest and the best will continue to be welcome in the UK, as will those who seek to come here to visit or to invest.
My Lords, I wonder whether I could just come back to the noble Earl on one or two points. First, I thank him for the comprehensive response that he gave to both me and the noble Baroness but I do have two points.
On the brightest and the best, I very much appreciate the noble Earl’s willingness to share some of these points with Mr Damian Green, the Minister responsible. My concern about students is one that comes from very reputable educational institutions—not the bogus institutions which we have debated and on which I think that a great deal of action has already taken place. These are respected institutions that have overseas students who make a huge contribution to the life and the finances of our higher education institutes and who go back to their own countries. They are also very helpful in future relationships between the UK and other countries.
The noble Earl knows that my background is in the health service, on which I refer noble Lords to the register of interests. However, if one thinks about the doctors who have trained here, for example, while I know that this is a slightly different issue from the more general one of students from other countries, the positive impact that they have on the UK healthcare industry for years to come is immeasurable. That is why we have to be careful about the consultation that is out with UKBA at the moment.
The second issue is that of fairness for those overseas students who are currently here and who will be impacted by the restriction on work. A crucial part of the experience for overseas students when they come here is that they are able to do some post-student work. Is the noble Earl prepared to look into this matter? I know we have Oral Questions next week, but these matters relating to work are being pursued by myself and by the noble Lord, Lord Clement-Jones, with a genuine concern about the impact that this will have on the UK and on our universities in particular.
The Minister very kindly responded to the points I raised about consultation. He is to bring forward orders later on with the proposed fee changes. Will the proposed fees in those orders have gone through some consultative procedure? It would be helpful to get an answer to that.
My Lords, on the first point raised by the noble Lord, I agree with nearly everything that is said about the background to his concern; he is clearly right. I say “nearly everything” just in case he said something with which I cannot agree, but everything he said makes sense. He talked about post-student work, if I may put it that way. The problem is that some students have abused it and ruined it for others. We need to work out how we can get all the benefits of overseas students not only for ourselves but for the rest of the world while avoiding some of the problems.
I understand that, but the point is that we are in a competitive world. I am being told that other countries, such as the US and other European countries, are rubbing their hands with glee at the UKBA consultation because they know that the impact will be that the high-quality people, who would have come to the UK, will go elsewhere. From an economic point of view, that is madness. I am grateful for the tone of the noble Earl’s response, which is very constructive, but we need to be very careful about the signals we are giving to the kind of people we would always want to welcome to our shores.
My Lords, I am grateful for the noble Lord's attitude to me because I am trying to be as helpful as I can and I look forward to drilling down into these issues and getting him the answers that he requires. The noble Lord made the point about the brightest and the best and the concerns of the education sector. We note those concerns and we will respond fully to the responses received on the UKBA students’ consultation. However, it is worth noting that not all students return immediately: 21 per cent of students who entered in 2004 were still here after five years. The noble Lord asked about consultation and my understanding is that there will be consultation internally with Government but not externally. If I am wrong on that I shall write to him. I hope I have answered all of the noble Lord's concerns.
Civil Procedure (Amendment No. 4) Rules 2010
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Civil Procedure (Amendment No. 4) Rules 2010.
Relevant documents: 14th Report from the Joint Committee on Statutory Instruments.
I beg to move that the Grand Committee do now consider the Civil Procedure (Amendment No.4) Rules 2010, but I will also speak to the Rules of the Court of Judicature (Northern Ireland) (Amendment No.3) 2010.
Noble Lords may find it helpful if I start by briefly explaining the wider legislative context of the rules that we are debating today. The ruling of the Supreme Court in the case of Ahmed and others v HM Treasury in January 2010 placed the legality of the Terrorism (United Nations Measures) Order 2009 in doubt. Consequently, the Terrorist Asset-Freezing (Temporary Provisions) Act was passed in February 2010 to protect the 2009 order from being quashed on vires grounds. Subsequently, the Terrorist Asset-Freezing etc. Act 2010 received Royal Assent in December and put terrorist asset-freezing designation powers in primary legislation. I think that all parties recognise that the 2010 Act was absolutely necessary to the United Kingdom’s continued national security and to fulfil our international obligations under United Nations Security Council Resolution 1373.
Both Houses of Parliament gave the Act careful scrutiny during its passage, in particular looking closely at the civil liberties issues raised and how best to address them without compromising national security. The Government made a number of amendments to the asset-freezing regime provided by the 2009 order, including the introduction of a higher threshold for designations lasting longer than 30 days—reasonable belief rather than reasonable suspicion—and a merits-based right of appeal against designation decisions rather than judicial review. I am confident that we struck the right balance in the 2010 Act between protecting national security and protecting civil liberties.
As part of the government amendments which introduced a merits-based right of appeal to asset-freezing designation decisions, a provision was included to allow the Lord Chancellor to make rules of court for such appeals. That was necessary to allow rules to be made quickly after the Bill received Royal Assent. Rules were needed quickly because transitional provisions in the Act deem designations in force under the 2009 order to have been made under the 2010 Act for a short time to ensure continuity of asset-freezes. Rules needed to be made to ensure that there was a framework in place if designated persons wanted to challenge their freezes under the Act.
The Lords Chief Justice of England and Wales and of Northern Ireland were consulted on the draft rules. The Civil Procedure Rule Committee was informed that the Lord Chancellor would be making rules to provide for asset-freezing appeals and was shown an early draft. The Civil Procedure (Amendment No.4) Rules 2010 and the Rules of the Court of Judicature (Northern Ireland) (Amendment No.3) 2010 were laid before Parliament on 23 December 2010 and came into force the next day.
The rules of court made by the Lord Chancellor for designation appeals amend Part 79 of the Civil Procedure Rules and Order 116B of the Rules of the Court of Judicature (Northern Ireland) 1980 respectively. Part 79 was created following the passage of the Counter-Terrorism Act 2008 to provide rules of court for financial restriction proceedings, including asset-freezing proceedings.
Rules in Part 79 cover the use of closed information and special advocates and are intended to ensure that information is not disclosed contrary to the public interest while ensuring that proceedings are properly determined. The existing provisions of Part 79 apply judicial review principles to such challenges. These remain in force for decisions—such as challenges in relation to asset-freezing licensing decisions—that remain subject to judicial review principles.
There are three strands of amendments to the Part 79 rules to allow for appeals. First, Rule 79.1 is amended so that the general provisions concerning the appointment of special advocates, the requirements for disclosure and procedures for determination of proceedings apply also to designation appeals. Secondly, a new Section 3 is inserted. This deals with the mechanics of starting an appeal by setting out the details to be included in the notice filed to start an appeal and the material to be filed with that. It also applies existing rules to any application to the Court of Appeal following a High Court determination. Thirdly, there is one substantive amendment made to the general provisions in Section 4 of Part 79 as they apply to appeals. This concerns disclosure, which in itself is a complicated matter and requires a little explanation.
Rule 79.23 requires the “disclosing party” to search for material that is relevant and, under Rule 79.23(1)(b), to file and serve material: on which the disclosing party relies; which adversely affects the disclosing party; which adversely affects the other party; or which supports the other party.
There is an exception for the disclosure of “closed material” which is dealt with separately. A difficulty arises because the definition of closed material in Part 79 does not cover material which a party holds and which adversely affects not him but the other party, but which he does not wish to use. Therefore, if the Treasury holds sensitive material which supports the case for designation but which, for reasons of national security, it does not want to rely on in an appeal, it could be argued that it should be disclosed under the current wording of Rule 79.23. We think that this interpretation is wrong, given the obligations in the rules to ensure that disclosures of information are not made where they would be contrary to the public interest.
We are therefore using this amendment to make clear the parties’ disclosure requirements so far as the rules apply to appeals. We will ask the Civil Procedure Rule Committee to exercise its power to remove this provision from Part 79 as it applies to other financial restriction proceedings. Let me stress that this change in no way adversely affects the appellant or the proper determination of the appeal. Nor will it affect the Treasury’s obligation to disclose all information which adversely affects the Treasury’s case or supports the other party’s case.
On 4 February, the Joint Committee on Statutory Instruments published its 14th report, in which it drew two issues to the special attention of both Houses. We are grateful to the committee for publishing the report on Friday, rather than tomorrow as would have been its usual practice. Early publication has enabled this debate to go ahead when otherwise it would inevitably have had to be postponed.
The first point to which the JCSI draws special attention is a failure to set out the fact that Section 28(4) of the Terrorist Asset-Freezing etc. Act 2010—one of the instrument’s enabling powers—incorporates by reference Sections 66 to 68 of the Counter-Terrorism Act 2008. Sections 66 to 68 authorise provisions in the court rules which apply to designation appeals. The JCSI concludes, and the Ministry of Justice accepts, that the instrument does not in this respect comply with proper drafting practice. However, there is no effect on the validity of the instruments.
The JCSI has also drawn attention to a reference in each set of rules to “the application” rather than “the appeal”. The Ministry of Justice has made it clear in correspondence with the JCSI that although the meaning should be clear from the context, use of “the appeal” would have been preferable. The Ministry of Justice will draw that to the attention of the Civil Procedure Rule Committee, which can, if it considers it appropriate, make that change next time the Civil Procedure Rules are amended.
I turn now briefly to the Rules of the Court of Judicature (Northern Ireland) (Amendment No.3) 2010. Order 116B was, like Part 79, created following the passage of the Counter-Terrorism Act 2008 and creates rules of court for the determination of challenges to financial restriction decisions. Order 116B has a similar scope and content to Part 79 in that it provides for the use of closed material and the appointment of special advocates. Order 116B is similarly amended by the Amendment No.3 instrument to apply it to designation appeals under the 2010 Act, and is amended in the three ways outlined above for Part 79. If the amendments to Part 79 and Order 116B are approved, any future amendments to Part 79 will be made by the Civil Procedure Rule Committee and any future amendments to Order 116B will be made by the Northern Ireland Court of Judicature Rules Committee.
The court rules we are debating set out the process we expect the court to follow when considering merits-based challenges to designation decisions. They implement one of the key new safeguards agreed for the UK’s terrorist asset-freezing regime. They are necessary to ensure that a proper framework is in place for challenges to asset-freezing designations, and will ensure that appropriately in-depth scrutiny is given to the relevant decision while protecting sensitive material from damaging public disclosure.
My Lords, I am grateful to the Minister for introducing these rules. The previous Government promoted terrorist asset-freezing orders, for very good reasons, to increase the protection of the UK and of its citizens. I am pleased to see that the approach has been continued by this Government. I particularly welcome the refinement in relation to disclosure, which I agree will remove the potential for difficulty.
One appreciates that, prior to the election, many members of the then Opposition made criticisms about anti-terrorist legislation and that this Government contains a number of those who made those arguments—although not, of course, the Minister. Yet those others are, perhaps, now coming to an understanding that the tension between civil liberties and the protection of the UK is rather more complicated and less clear-cut than they first argued. One notes that they are also discovering this in relation to control orders, another area which was of great controversy.
These instruments seek to implement the innovations that the Government thought proper to bring to terrorist asset-freezing orders. The use of judicial review with the addition of a separate merits-based appeals structure adds another level of potential court intervention. Another innovation is the introduction of the distinction between “reasonable suspicion” and “reasonable belief”, which is not pellucid. It now means that where the individual is reasonably suspected of being involved in terrorism, he will not be under a terrorist asset-freezing order after 30 days, unless that reasonable suspicion is shown to move towards reasonable belief standards. I am not sure whether that is particularly reassuring to UK citizens.
There are views that reasonable belief and reasonable suspicion are, if at all different, extremely close in meaning given the application of the objective standard imposed by the use of “reasonable”. This will no doubt be an area for complex argument before the courts, but it is perhaps not easy to see how much of a gain for the civil liberties argument this represents, if the difference is negligible. If, on the other hand, there is a palpable and real difference between the two standards—one notes that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has identified such an interest in the case of Saik—then the notion that those reasonably suspected of being involved in terrorist activity will be at liberty, after 30 days, to use their assets as they choose becomes a real concern.
It would hardly be satisfactory, where an interim order is made expressly because the individual is reasonably suspected of being involved in terrorist activity and to protect members of the public, that if one falls short of reasonable belief that individual is at liberty to do with his assets as he will. Is the Minister in a position to offer guidance on an interpretation of the difference between reasonable suspicion and reasonable belief? I ask him that because doubtless it will become an issue in the courts. It is doubtless that the provisions in respect of judicial review and appeal will be deployed on these types of arguments as well as on other issues. The expansion of the courts’ role with the addition of a separate merits-based appeals structure regarding terrorist asset-freezing orders against individuals suspected or believed to be involved in terrorist activity will presumably be welcomed by those individuals, at least. In this context, it would be interesting to hear whether the Government consider that the courts’ increased role pursuant to these instruments provides an increase or a reduction in the level of protection to the population at large—for of course it is they who will be among the victims in the event of any future terrorist attacks.
Will the Minister explain whether this expansion of the court’s role creates a tougher or more relaxed environment for potentially highly dangerous terrorists? I ask that question in the light of the expression made by the noble Lord, Lord Carlile of Berriew, in his recent report on the Prevention of Terrorism Act 2005. There is a concern that European Court of Human Rights’ decisions are making the UK,
“a safe haven for some individuals whose determination is to damage the UK and its citizens”.
The question should be asked whether the Government consider the expansion of the court’s role by these orders discourages or encourages those individuals identified by the noble Lord, Lord Carlile.
The Minister has made reference to the report of the Joint Committee on Statutory Instruments regarding the failure to comply with proper drafting practice and defective drafting. I note his explanation and proposed action in relation to these observations and I shall say nothing further on the point. However, we welcome the general continuation of the previous Government’s approach to disrupting potential terrorist activity.
My Lords, I am scripted to say that this has been an interesting debate, but it has been a short, focused and to-the-point exchange. I am grateful to the noble and learned Lord, Lord Davidson of Glen Clova, for being short, sharp and to the point in asking me some key questions about these new court rules.
The noble and learned Lord asked about the distinction between suspicion and belief, and what, if anything, that says about our underlying concern for national security as balanced with proper safeguards on grounds of civil liberties. As the noble and learned Lord will know, various court judgments define the difference between reasonable suspicion and belief. In summary, for suspicion, one believes that something may be so and, for belief, one believes that it is so. I am certainly not in a position to second-guess the courts, which have judged that there are significant differences. The Government certainly believe that national security requirements can be met by this combination of interim freezes for up to 30 days on the basis of reasonable suspicion, during which time further investigations can be made to determine whether the belief can be met. We believe that this balance between the national security and the civil liberties imperatives, which was extensively debated in your Lordships’ House, achieves what is intended. The court rules merely flow from that. I certainly do not think that the court rules in any way cut across or work against that construct.
On the role of the courts and judicial review versus appeal, the question was asked whether these instruments will result in a strengthening or a lessening of the protection of the public or, indeed, of the appellant. As a non-lawyer, I understand that what has been striking in the way that the courts have interpreted judicial review recently is that—in a national security context and, specifically, in relation to control orders—courts have increasingly approached judicial review in a way that is substantively similar to that of an appeal process. When considering the control order in the MB case, the Court of Appeal made it clear that it could substitute its own view for that of the Minister when deciding whether reasonable suspicion existed. We had expected the court to take a similar approach in relation to asset freezes, which would bring judicial review and appeal, in substance, close together in this area. In part, the approach we took in the 2010 Act was to formalise, in effect, what the courts were moving towards. It is better if, in reality, the substance of what the courts were moving towards was an appeal, but we actually put in the legislation, as Parliament has seen fit to do, a full appeals process and then the court rules follow from that. The noble and learned Lord’s question, in a sense, falls away because the courts have been bringing the two processes increasingly closer together.
On the role of the European Court of Human Rights, we do not think that the rules we are looking at here and the thresholds for suspicion and belief will mean any material change as to whether, why and how the ECHR can intervene in any particular case. Without commenting on the discussion on these issues over the weekend, I do not think that anything we are doing in the Act or the rules which we are considering today touches materially on those concerns.
I hope I addressed the less than perfect drafting in my opening remarks. The first of the two issues is a stylistic point that is an omission, but it does not have substantive effect. In the second case, it is clear from the context that the words, “the application” refer to the application to the Court of Appeal and so I think there is no question of possible misinterpretation of the statutory instruments and no substantive risk of being challenged in court. In any event, it will be up to the Civil Procedure Rule Committee to be able to amend the rules should that committee deem it necessary.
I hope I have been able to deal adequately with the noble and learned Lord’s points as I believe it is important that these rules are approved today. They provide the framework for those designated under the Terrorist Asset-Freezing etc. Act 2010 to challenge their asset freeze designation under the new appeals procedure. The court rules will ensure that rigorous scrutiny is given to the relevant decision, while at the same time protecting sensitive material from damaging public disclosure. Therefore, I commend these rules to the Committee.
Rules of the Court of Judicature (Northern Ireland) (Amendment No. 3) 2010
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Rules of the Court of Judicature (Northern Ireland) (Amendment No. 3) 2010.
Relevant documents: 14th Report from the Joint Committee on Statutory Instruments.
Control of Donations and Regulation of Loans etc. (Extension of the Prescribed Period) (Northern Ireland) Order 2011
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Control of Donations and Regulation of Loans etc. (Extension of the Prescribed Period) (Northern Ireland) Order 2011.
Relevant documents: 13th Report from the Joint Committee on Statutory Instruments
My Lords, the order before the Committee today will extend the period in which donations and loans to political parties and others in Northern Ireland must be held confidentially by the Electoral Commission. Noble Lords will be aware that political parties across the United Kingdom must report donations and loans received above certain thresholds to the Electoral Commission.
In Great Britain, the Electoral Commission is under a duty to publish details of these donations. However, due to ongoing concerns about intimidation in Northern Ireland, the Northern Ireland (Miscellaneous Provisions) Act 2006 made provision for details of any donations reported by Northern Ireland political parties to be held confidentially by the commission.
The 2006 Act provided that confidentiality should apply for only a temporary period—referred to in the Act as “the prescribed period”—and would expire on 31 October 2010, unless an order was made by the Secretary of State to extend that. Noble Lords may recall that this House approved a short extension of the prescribed period shortly after the election so that the provisions would expire on 1 March 2011. This was to allow for full consultation to take place on whether the time was right to move to full transparency.
A full 12-week consultation commenced shortly after this extension was approved and concluded on 25 October 2010. A total of 26 responses were received, mainly from members of the public, political parties and the media. Overall, the consultation demonstrated strong support from members of the public and journalists for full and immediate transparency. This was also supported by some political parties, including Sinn Fein, the Alliance Party and the Green Party. The Ulster Unionist Party and Democratic Unionist Party supported the extension of the current arrangements due to ongoing security concerns. The SDLP agreed that donor identities should be kept confidential, but believed that work should be undertaken to bring more transparency to the existing process.
The Electoral Commission also believed that identities should continue to be kept confidential if the Government concluded that the time was not yet right to move to full transparency, but agreed that there was room for greater transparency in the existing arrangements.
The consultation demonstrated that there is strong public support for full and immediate transparency, but also that concerns remain about the possible intimidation of donors. Noble Lords will be aware that, by its very nature, it is difficult properly to quantify levels of intimidation. Nevertheless, there has been a deterioration in recent years in the overall security situation in Northern Ireland. In particular, recent reports of the Independent Monitoring Commission have indicated an increase in paramilitary beatings and shootings.
It is very likely that this rise in violent activity has been accompanied by an increased risk of intimidation and that there would be a threat to the safety of those making donations to Northern Ireland parties if their identities were made known. The Government have therefore reluctantly concluded that the time is not yet right to move to full transparency and that it is necessary to bring forward the order to extend the prescribed period before us this evening.
However, I wish to reassure noble Lords that we have listened carefully to the expressions of support by the general public for more transparency in Northern Ireland. Since the consultation ended, officials have examined the possibility of bringing more transparency to the current process within the existing legislative framework. The Government are particularly concerned that the 2006 Act does not just protect donor identities, but prohibits the release by the commission of any details at all relating to a donation.
We had hoped that the order-making powers in the 2006 Act might allow for secondary legislation to be made to relax the current strict requirements, so that some details of donations and loans might be released—for example, details of the recipient, the amount received and when the donation was made. However, following closer examination, questions have arisen about the extent to which the 2006 Act would permit that. Nevertheless, officials will continue to explore the possibility of further secondary legislation being made to provide for increased transparency. If that is not possible, we will seek to make such provision through primary legislation when a suitable legislative vehicle can be found.
Noble Lords may also be aware that the consultation paper sought views on whether donations and loans made during the prescribed period should be kept confidential when the prescribed period ends. Currently, the 2006 Act provides that details of such donations and loans will be released when the prescribed period expires. Again, the majority of respondents advocated full and immediate transparency, including the release of details of past donations and loans when the prescribed period ends. However, the UUP, DUP, SDLP and Electoral Commission strongly opposed the release of that information. They believe that many donors and recipients did not properly appreciate that the 2006 Act provided for the eventual release of the information and donated in the belief that their identities would not be released, even after the prescribed period had ended. In light of those concerns, the Government will seek a suitable legislative vehicle to make provision to ensure that the information is not released when the prescribed period expires.
In summary, it is with great reluctance that the Government bring forward this order to extend the existing arrangements. We remain committed to achieving complete consistency between Northern Ireland and the rest of the UK when it comes to transparency in party funding. However, we cannot ignore the security risks that might arise if donor identities are made known at this time and the implications that it would have on the funding of political parties in Northern Ireland and the political process there more generally. Nevertheless, I hope that noble Lords are reassured that work will continue on doing everything possible to bring greater transparency to the existing arrangements.
My Lords, I am grateful for the clear explanation from the Minister in what is rather a complex area. We note the strong support for lifting the exemption in place in Northern Ireland; I think that 77 per cent of respondents suggested that they were in favour of that. However, despite the enormous progress in Northern Ireland over recent years, we appreciate that the political situation there continues to be sensitive and that caution is required.
It is interesting that 12 per cent of respondents—the same number who supported the Government’s position of no change—supported option 3. As noble Lords know, that option is the current exemption with some modifications—for example, publishing the amounts received, the recipient, and whether the donor was an individual or a company. In principle we support greater transparency in the Northern Ireland political and electoral system but, given the serious and difficult security situation, we understand that a responsible Government need to exercise caution. We consider that option 3, which was canvassed in the Northern Ireland order consultation paper, struck a good balance between protecting the security of the people participating in the political process by providing donations and loans, and the expectation of the public to have transparency in the electoral system.
This is an important order so, as the Committee would expect, I have several questions to put to the Minister. He gave various reasons for continuing the current exemption unamended, but I wondered why the Government happened on two years. What is the rationale for that? He rightly mentioned the intimidation that is taking place. What are the Government planning to do to reduce the risk of intimidation that currently prevents the details being released? Will the Government use the two years’ extension to develop and implement a more transparent system for political donations and loans of the kind considered under option 3?
Paragraph 12 of the Government’s response to the consultation document said that the department would examine the possibilities of making option 3 transparency changes through secondary legislation. It would be helpful to have further clarification on that point. What options and types of transparency changes is the department looking at? What is the originating primary legislation power that would enable such secondary legislation to be made? What is the timeframe for this work? Finally, will the public be consulted on the possible options?
I hope that noble Lords will forgive this raft of questions, but they are very important. I look forward to the Minister’s response.
My Lords, I, too, thank my noble friend for introducing this order. Bearing in mind that the Belfast agreement took place in 1998, it is very depressing that here we are and we cannot have normal conditions obtaining in Northern Ireland. I take some heart from the fact that it is only a two-year extension, by which I mean, pace the noble Baroness, Lady Royall, that a signal has been given to the political parties that this is the last time that the order will be continued in its present form. I hope that it will lapse. As the noble Baroness, Lady Royall, has said, there have been great steps forward—after a very irregular start since the Belfast agreement when we had the suspension of Stormont—but we should look forward to normal transparencies obtaining.
To get a sense of the order of magnitude, I should like to ask my noble friend if for the past financial year he can indicate the totals of donations by party. While I appreciate that for the current year we might see an increase in donations because it is an election year, it will be nevertheless very interesting to have it on the public record to see at what sums we are looking—whether they are trivial or of some substance. I should be grateful for that information.
I, too, thank the noble Lord, Lord Shutt, for introducing this order. Like the noble Lord, Lord Smith, I have listened to his words with a degree of disappointment. It is right to say that the limits on the progress that has been made in Northern Ireland—remarkable though that progress has been—are shown in that we are still talking about these exemptions and derogations from broader UK electoral law and the transparency of such law.
I am not surprised by the words of the Minister and the proposal put today because the balance of opinion, to my surprise, in Northern Ireland over the past year has been very cautious about changing existing regulations. It has become clear for some time that the Government, if they were to respond to what they were hearing, would have to be relatively cautious in their response. But, having plagued the noble Lord, Lord Rooker, when he was at the Dispatch Box as long ago as 2007 on this matter and having, I think, plagued the noble Baroness, Lady Royall, on this matter, it would be hypocritical of me not to record a note of disappointment. I know why the Government have reached this conclusion. I know that they may have been slightly surprised by the degree of concern on the part of the political parties. But having received that, any responsible Government have to pay attention to it.
I simply make the point that Northern Ireland last year was convulsed by public scandals. One of the issues that lay in the background was that of the relationship of certain businessmen to certain political parties. In the rest of the United Kingdom, such matters would be easily sorted out and put into the public domain, but in Northern Ireland we do not know where we stand. That is a difficulty and the step that the Minister is taking is regrettable, if understandable.
The noble Lord, Lord Smith, says that he hopes that there is a two-year limit and that the provision might just lapse in two years. However, having been at this now for four years, I am not quite so secure in that assumption. I hope that he is right. Therefore, I would like to be reassured that the Minister is as clear as he appears to be that the department is looking carefully at work to deal with this by secondary legislation and, if it cannot be done by that method, that primary legislation will be introduced that at least loosens some of the provisions and gives greater openness. I have an uneasy feeling that, in the short term, that will be the best that we can do; I very much hope that I am wrong. Therefore, it is important that the Northern Ireland Office looks carefully at what can be done in certain areas, because I have a feeling that—even two years from now—we will not be looking at the simple lapsing of this legislation.
My Lords, I thank the three noble Lords for their contributions and will endeavour to respond accordingly. In terms of the Government’s position, the noble Baroness, Lady Royall, made the helpful point that she understands where we are at present. She spoke very much about what she referred to as option 3 of what was put forward in the consultation. She asked why we had said two years. The legislation envisaged extensions of the prescribed period for up to two years, so that is the figure that one can go to and no further without another order. She asked what the Government were doing to reduce intimidation. The Government remain committed to doing everything possible to reduce violent activity in Northern Ireland. We continue to work with the Executive and security agencies to reduce overall paramilitary activity, which should lead to a corresponding decrease in intimidation.
The third point that the noble Baroness raised was about the use of the two years. Clearly, work has to be done—this reverts to the point made by the noble Lord, Lord Bew—on either a new order or primary legislation before too long, because of the issues that noble Lords agreed on, I think, about not releasing past information on the basis that people made donations in the belief that the information about them as donors was not to be released. That would have to be dealt with. Similarly, there could be a system whereby it was not exposed if—for example—the noble Lord, Lord Bew, gave £10,000 to a party today, but the facts that there were £10,000, a recipient and a date could be given. As we understand it, that cannot be done under present legislation.
The noble Baroness, Lady Royall, referred to the originating power, which is in the Northern Ireland (Miscellaneous Provisions Act) 2006. I have not got a note about whether there will be a fresh period of consultation. That would be in the spirit of what happens in these matters but there is a sense in which what is planned is clear without further consultation, in that it would be about numbers, dates and the recipient party but not the name of the donor. Perhaps this could be done without a further consultation period, but I do not want to close the door on consultation. That copes with the points.
My noble friend Lord Smith of Clifton found it depressing, which I understand, and I wish I was not moving this order. I wish it were rather different, but this is the way it is. This is advice which is given about the security situation in Northern Ireland and what it is right to do. Like him, I would sooner be looking forward.
Over the weekend, I dug out what is on the public record as regards what the parties publish because the parties still have to produce their accounts to be registered with the Electoral Commission. I give this information, which is in the public domain, with one or two health warnings. This relates to the calendar year. All the parties that I shall mention have year ends in December 2009 and, therefore, that does not include what might have been a different year in 2010, when there was a general election.
Five of the parties—the DUP, Sinn Fein, the UUP, the SDLP and the Alliance Party—have between them 186 accounting units, no doubt constituency associations and so forth. Having looked at what is on record with the Electoral Commission, in the accounting units, there do not appear to be hefty figures labelled as donations. Looking at what is shown by the Northern Ireland-wide parties one sees that the DUP’s income was £348,000 with donations of £126,000; Sinn Fein’s income was £1.177 million and its donations £462,000; the UUP’s income was £392,000 and its donations £21,000; the SDLP’s income was £398,000 and its donations £83,000; the Alliance Party’s income was £151,000 and its donations £16,000; the PUP’s income was £107,000 and its donations £150; the Green’s income was £47,000 and its donations £7,000; the income of the Conservatives in Northern Ireland was £215,000 and its donations £204,000; the Labour Party’s income was £1,450 and it had no donations.
Those figures are available for anyone to look at on the website of the Electoral Commission. However, I cannot vouch that each party has put a donation in its own accounts as a donation which has been seen as recordable on the other side of the book with the Electoral Commission. Many of us might see a heavy subscription as a donation, but it might be called a subscription. There are certain health warnings on that, but it gives an idea of the fact that the Northern Ireland-wide income of the parties in that year was just over £2.8 million and the amount that is listed as donations is just over £900,000. Those are the figures and they give one a feel for the sort of numbers we are talking about.
I think I have covered the points made by noble Lords and I hope that the order will be accepted.
Before the Minister sits down, I want to press him on one question on the option 3 transparency changes that might or might not be brought forward in secondary legislation. What sort of timeframe are we talking about for such secondary legislation?
I cannot be absolute about this. All I can say is that because the extension ends on 1 March, clearly, moves have to be made now to move that further forward. As I understand it, people are working on this within the Northern Ireland Office because there is a general view that at least there will be an element of greater transparency. I certainly hope that we do not have to wait long to see if this can be done without primary legislation. It might be rather more difficult if we have to look at primary legislation.
Committee adjourned at 6 pm.