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I fear that the wording of Clause 26(3) will inevitably lead to considerable uncertainty. When persons win their appeals against designation orders-and some of them will-they will inevitably ask for damages and the court will have to decide whether Clause 26(3) embodies a discretion for it to award damages. I am concerned that the House should understand clearly what the Government's position is. In Committee, Amendment 46 moved by the noble and learned Lord, Lord Davidson of Glen Clova, required the Bill to state expressly:
"Should a designated person or any other person wish to seek compensation for loss suffered as a result of an incorrect designation, we believe that there are sufficient existing opportunities available for them to do so ... we believe that it would be possible, in connection with a successful challenge against the designation, for the person to claim damages".-[Official Report, 6/10/10; col. 193.]
However, I understand the Minister today to be saying something very different, which is that the court would enjoy the right to award damages only if the individual were able to establish some other legal basis for the award of damages-a breach of the Human Rights Act or a tort. If I have misunderstood the Minister, I should be grateful if he tells me and the House. This is a very important matter and it is absolutely vital that the House understands precisely the Government's position and intention on this, and that the Bill is clear, so that those who read the legislation know exactly where they stand. I respectfully ask the Minister to think about this matter again over the next few days, to read the debate and, indeed, the debate in Committee, and consider whether it would be possible to come up with some words to clarify the position.
I entirely accept the point made by the noble Lord, Lord Bach, that this is not an appropriate matter on which to divide the House-certainly today-but I would be grateful if the Minister would think about the matter again. On that basis, I beg leave to withdraw the amendment.
(a) in paragraph (c) after "that" insert "subject to paragraph (ca) below"; and
(b) after paragraph (c) insert-
"(ca) that in relation to a final designation, the material disclosed by the Treasury on which they rely is sufficient to enable each designated person to give effective instructions to a person appointed as a special advocate to represent that party's interests;"."
Lord Pannick: My Lords, Amendments 23 and 24 are designed to give statutory effect, in the asset-freezing context, to the principle established by the Appellate Committee of this House in the case of AF (No. 3). I declare an interest-although it is not really an interest-in that I was counsel for the claimant in that case.
The principle stated by the Appellate Committee is that where a person is the subject of a preventive measure such as a control order, which severely restricts his basic liberties, that person must be given sufficient information about the allegations against him to enable him to give effective instructions to his lawyers or the special advocates to enable them to respond. The demands of national security, important though they are, cannot outweigh the basic right to know the case against you and to have the opportunity to answer it. The reason for that, of course, is that a right of appeal to a court is of very limited value if the subject of the order does not know the essence of the case against him.
I am surprised that the reply from the Minister, the noble Lord, Lord Sassoon, to the chairman of the Joint Committee on Human Rights disputes that the AF principles apply in the context of asset freezing. I am surprised for three reasons-first, because a recent judgment of the European Court of Justice in the Kadi case specifically applied the same principles to asset freezing. Secondly, I am surprised because a judgment of the Court of Appeal earlier this year in the Bank Mellat case applied the AF principle to a Treasury decision to prohibit the financial sector in this country from entering into business with the claimant-an Iranian bank. There is very little distinction in principle between asset freezing and the financial restriction proceedings that were an issue in the Bank
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Amendment 23 would amend the relevant provision of the Counter-Terrorism Act 2008 so as to require rules of court to ensure that the court's otherwise absolute duty of non-disclosure in asset-freezing proceedings, where national security so requires, is expressly qualified by a positive duty to ensure sufficient disclosure to protect the right to a fair hearing. Amendment 24 is consequential.
These amendments, like many amendments that your Lordships have debated today, are required to avoid uncertainty in courts, delay and expense in the implementation of legal rights. The House may be aware that 27 special advocates pointed out in their recent written evidence to the Home Office counterterrorism review that there have been continuing difficulties in practice in securing the right to a fair hearing in control order cases. These amendments are designed to make clear the primacy of the duty of fairness in this context, as in the other context, consistent with what the courts have repeatedly stated, and to avoid the uncertainty that will inevitably otherwise result. I beg to move.
Lord Lester of Herne Hill: My Lords, I have put my name to the amendment and I wish to speak briefly in support of it. I shall not add to anything that the noble Lord, Lord Pannick, has said, because I perfectly agree with his entire analysis.
Regarding the evidence given to the noble Lord, Lord Macdonald, QC, in his review of counterterrorism powers, the noble Lord, Lord Pannick, referred to 27 members of the Bar who gave evidence. Eleven of them are extremely distinguished Queen's Counsel, as are the juniors who act for both sides, who cannot be accused of being soft on terrorism or anything of that kind. I do not know whether the Minister has seen their devastating criticism and attack upon the special advocates and control order regime.
Like the noble Lord, Lord Pannick, I do not agree that there is a distinction to be made between this regime and control orders for the reasons which he has given, including the judgment of the European Court of Justice in the Kadi case. I can deal with the amendment briefly, because the report of the Joint Committee on Human Rights published at the end of last week deals with this matter in detail, from paragraph 1.25 to paragraph 1.35. The committee will meet tomorrow and will need to consider this debate and the Minister's letter to the committee, referred to by the noble Lord, Lord Pannick.
"We recommend that consideration be given to amending the legal framework to ensure that it secures the 'substantial measure of procedural justice' to which the subject of an asset-freeze is entitled under both Article 6 ECHR and the common law ... we recommend that consideration be given to amending the Bill in four specific ways".
Whatever happens today, this will not go away. It is extremely important, and it is my wish that both Houses take steps to ensure again that our statute book avoids the need for unnecessary litigation. Unless a significant change is made, whether in this House or the other place, it will be inevitable that this will be pursued not only in the context of counterterrorism, but also in the context of this aspect of counterterrorism; namely, asset freezing. Therefore, I hope that even at this late stage in the process in this House consideration can be given to what is in the report of our committee.
Lord Mackay of Clashfern: My Lords, it appears reasonably plain that the ratio of the decision of this House in the case referred to by the noble Lord, Lord Pannick, would apply with equal effect to asset-freezing orders and to the subject matter of that particular decision. The only question is whether one has to wait for a court to make that decision in this type of case or whether Parliament should decide it now. To achieve a good and clear result fairly quickly, the proposal of the noble Lord, Lord Pannick, is correct. The precise wording follows very much that of the decision of this House in AF (No. 3), but I can see that there is room for consideration of that. However, I strongly support the view that this principle should be recognised in relation to asset freezing, as it was in AF (No. 3).
Lord Carlile of Berriew: My Lords, I join in asking my noble friend to consider very carefully the proposal put forward by the noble Lord, Lord Pannick. I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that there is no logic to saying that different principles will apply to asset-freezing cases from those that apply to control order cases.
Lord Bach: My Lords, I was very well assisted by the report that the committee brought out, and by the paragraphs referred to by the noble Lord, Lord Lester. The Government of whom I was a member set up the special advocate system in order to deal with what was and remains a very difficult issue around terrorism. However, we recognise that there are difficulties with it that any Government will have to deal with in due course. On balance, we do not think that the Bill is the appropriate vehicle to make sweeping changes of principle on the issue of the special advocate system.
I have a couple of questions that I should like to ask. This may be a short debate, but the issue may be one of the most important that we debate this afternoon. As my noble friend Lord Davies of Oldham said in an earlier debate, this matter calls into question the balance between civil liberties and security-it is right at the heart of that argument. Any Government of whatever complexion will have to deal with this, day by day and month by month. I take the point made by the three noble Lords who have spoken already that it is difficult to understand why the Government argued in Committee that the regime for control orders is not the same as that for asset freezing, particularly as it relates to the special advocate system. In the end, it seems that the same rules will have to apply, whatever they are. I hope that the Minister will deal with that point when he
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I am aware that there is to be a Green Paper on this vexed issue in 2011. Will the Minister confirm that that will not be December 2011, as presently planned, but more like the middle of the year? I also understand that there is likely to be a case, perhaps on point, that the Supreme Court will be asked to decide, and which will be heard very early next year, with the judgment expected in good time for the Green Paper.
Those are my questions. Despite what I have said, I hope that the noble Lord will not press the amendment. It needs some careful consideration. However, the points that have been made are powerful and must be dealt with at some stage.
Lord Wallace of Tankerness: My Lords, as the noble Lord, Lord Bach, indicated, this has been a short but fundamentally important debate. As he also indicated, it focuses on the challenge and dilemma of balancing the interests of liberty and those of security. I know that the noble Lord, having relatively recently been in government, had to do that himself. These are not easy issues to determine. It is important to recognise, too, that they are issues with which the Government constantly wrestle. It is fair to say that in its preliminary report-I welcome the fact that we have that report to help us today-the Joint Committee on Human Rights acknowledged the amendments that were moved in Committee and welcomed the Government's willingness to consider the human rights issues raised during the debate at Second Reading and their amendments to the Bill, which are designed to improve the balance between national security and human rights in the asset-freezing regime. This is an issue of which Ministers are acutely conscious as they constantly try to ensure that the balance is correct.
Amendment 23, moved by the noble Lord, Lord Pannick, seeks to create a new subsection within Section 67 of the Counter-Terrorism Act 2008 that would apply to the content of the court rules about disclosure in financial restrictions proceedings and to court rules made in relation to challenges to decisions under the Bill. The amendment would require the court rules, which are to be made initially by the Lord Chancellor for England and Wales and Northern Ireland, to ensure that the Treasury provides sufficient open disclosure to enable the designated person to give instructions to the special advocate. As has been reflected in some contributions to the debate, the form of words is based on the European Court of Human Rights judgment in A, which was applied by your Lordships' Judicial Committee in AF and Others to the stringent control orders that it was considering. The effect of the amendment is to apply AF (No. 3) to challenges to final designations.
As was foreshadowed in the letter of my noble friend Lord Sassoon to the committee, the Government do not support this amendment, and I shall explain why. I start by stressing a fundamental point on which I know there is common ground all round the House. Designated persons must have the full protections afforded to them under Article 6 of the European Convention on Human Rights; namely, the right to a fair hearing.
Section 67(6) of the Counter-Terrorism Act 2008, which is imported into the regime for dealing with asset freezing, is absolutely clear that nothing in that section, or in rules of court made under it-they include provisions relating to the Treasury's disclosure of information only to the court and a special advocate-requires the court to act in a way that is inconsistent with Article 6 of the ECHR. It is important to emphasise that the judge also has an important role to play in challenging the closed material and in weighing the impact that non-disclosure has on the fairness of the proceedings. The court determines whether material should be withheld, and the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest is disclosed.
The Government and the legislation are absolutely clear that Article 6 rights apply in full to asset freezing. Therefore, it would be inaccurate to say-and I do not think that this was suggested-that advocates of the amendment support Article 6 rights while the Government do not. To make it clear, not only do the Government support Article 6 rights but those rights are there in the Bill by reference to the Counter-Terrorism Act 2008.
I hope that there is broad agreement that the legal position regarding the application of AF (No. 3) principles to asset freezing has not been fully determined by the courts. That is probably a matter of fact but it is clear that different views are being expressed in the House this evening regarding the applicability of the decision in AF (No. 3) to asset-freezing designations. Of course, the courts have determined-indeed, it was determined in the case itself-that AF (No. 3) principles apply to stringent control orders and to financial restrictions proceedings under the Counter-Terrorism Act 2008. That was the subject matter of the case to which the noble Lord, Lord Pannick, referred. However, the courts have not yet determined that AF (No. 3) principles apply to asset-freezing cases. The Government's view is that it would certainly be wrong to say that legally there is no room for doubt on this.
I shall now seek to address the points that the noble Lord, Lord Pannick, made in moving the amendment. When the Bill was discussed in Committee, I indicated that in the Government's view the principles do not apply to asset freezing because, although I do not in any way wish to minimise their significance or importance, asset freezes do not have the same impact on individuals as stringent control orders, nor are they as wide-ranging in their financial and economic impacts as decisions to impose financial restrictions under the Counter-Terrorism Act 2008. Perhaps I can assist the noble Lord, Lord Bach, who asked me to identify some of the distinctions. Asset freezes are not of the same nature or magnitude of interference, because they restrict the rights to property and indeed can be modified or alleviated by licences, whereas control orders restrict people's liberty, communications and movement. As I said, I do not in any way diminish the seriousness of asset-freezing designations but, in our argument, their impact is not of the same magnitude as that of stringent control orders. However, it is open to the courts to determine whether the Government's position is to be challenged.
It is certainly possible to draw a distinction in the case of Kadi, which was determined by the European Court of Justice. That judgment concerned the process followed by the European Commission in listing Kadi, and the Government would certainly argue that it had no direct bearing on the process to be followed by the United Kingdom Government in applying asset freezes domestically against persons believed to be involved in terrorism. We believe that the European Court of Justice judgment in Kadi is separate from the question of whether AF (No. 3) principles should apply to asset freezes. Likewise, in the Bank Mellat case, which was determined in May this year, the court's rulings on disclosure were specific to the cases concerned and there was no general ruling on whether AF (No. 3) should apply in asset-freezing cases. The court ruled that the application of AF (No. 3) applied in the context of financial restrictions imposed against the Iranian bank, but the circumstances of such financial restrictions, where the Treasury issued a direction that the UK financial sector must cease dealings with the bank, were very different from those where an individual is subject to an asset freeze because of his alleged involvement in terrorism. Therefore, I do not think that a direct read-across of the court's ruling is right, applying the specific circumstances under consideration to the freezing of terrorist assets, where different considerations may well apply.
Lord Lester of Herne Hill: I apologise for interrupting the noble Lord, but does he not agree that his valiant attempt to distinguish the control order regime and the asset-freezing regime runs against the following difficulty? The European Court of Justice in Kadi (No. 1) and Kadi (No. 2) took an extremely robust position with regard to a UN framework, emphasising the extreme deprivation that could result from asset freezing and the need for adequate safeguards. The Court found that the European Commission's second attempt to produce adequate safeguards had failed. Would that not give advocates using arguments of that kind in our courts a very hard time indeed?
Lord Wallace of Tankerness: My Lords, I can almost hear the noble Lord advancing that case. The Government's position is simply that it is possible to make a distinction where there was a challenge to the listing in the Kadi case. It is not a position that we would wish to concede; it is on all fours with the circumstances that would arise in an asset-freezing case.
Should the courts decide that AF (No. 3) applies to asset-freezing cases, any court rules that cut across this would be read down to ensure compatibility with the ruling. Therefore, it would not be necessary to amend the legislation. In any event, it would be premature to prejudge such a determination by the courts and now to require the disclosure of sensitive information that could damage national security or the detection or prevention of crime.
The question is how best to deal with a situation where the applicability of AF (No. 3) principles is not given and is uncertain. Advocates of the amendment argue that we must remove the uncertainty by giving the Government specific obligations in this statute in
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It would also be wrong to adopt a piecemeal approach to this important issue. As we have heard eloquently expressed in the debate this evening, the issue of special advocates and the use of intelligence material cuts across a number of areas. If we try to address these important issues in an ad hoc way in individual pieces of legislation dealing with different aspects, we risk ending up with different requirements in different pieces of legislation. I know that that is not what many noble Lords wish to happen in this area of legislation. They want to see greater coherence and consolidation, not fragmentation and a piecemeal approach. I could not have agreed more with my noble friend Lord Lester when he said that this matter will not go away. The Government readily recognise that. As I indicated, our commitment is to address the issue. The fact that we are willing to do that is a testament to the importance that we attach to it.
The Green Paper will aim to develop a framework for ensuring full judicial and non-judicial scrutiny of intelligence and wider national security activities in line with the Government's commitment to individual rights, to the rule of law and to properly protecting national security. It will need to address concerns about the United Kingdom's ability to protect intelligence material, including that shared by foreign partners, and to bring forward proposals to reconcile the evolving legal position-duly informed, as it will be, by Strasbourg and Supreme Court rulings-with modern intelligence practices. We will try to ensure such a coherent and consistent approach. I hope that noble Lords will welcome and support that approach and see it as a recognition not just of how important this issue is but also of just how difficult it can be to reconcile two very important but at times competing requirements. Although I recognise that noble Lords have raised necessary and important issues with this amendment, I hope that the noble Lord will agree to withdraw it.
Amendment 24 would amend Civil Procedure Rule 79.2. That rule requires the court, when dealing with certain cases, to read the overriding objective of the Civil Procedure Rules-in other words, to deal with cases justly in a way that is compatible with the requirement to ensure that information is not disclosed contrary to the public interest, while ensuring that it
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For two reasons, I do not believe that the amendment is necessary. As I have already made clear-I shall not rehearse the reasons again-the Government do not accept that AF (No. 3) applies to asset-freezing challenges. It is for the court to decide the ambit of AF (No. 3) on a case-by-case basis. Even if ultimately the court found that AF (No 3) applied to challenges to asset-freezing decisions, we do not think that there would necessarily be a conflict between the disclosure requirements of AF (No. 3) and the public interest requirement of Rule 79.2 of the court rules. Rule 79.23 makes it clear that the public interest provision is without prejudice to the need for the court to satisfy itself that the material available to it enables it properly to determine the proceedings. Furthermore, as I have indicated, Section 67(6) of the Counter-Terrorism Act 2008, which is imported into this Bill, simply states:
In short, the Government do not believe that Rule 79.2 would cut across any fairness obligation required by the court to meet Article 6. It is an important reminder of the need to deal carefully with sensitive material but it does not constrict the proper determination of the proceedings.
I recognise that serious and important issues have been raised. I have sought to address, although I suspect that I have not done so fully, the concerns expressed by noble Lords. We hope that this will be considered fully. My noble friend Lord Lester mentioned the special advocates, as did the noble Lord, Lord Pannick, who expressed his views very robustly. There will be an opportunity to deal with that in the context of a Green Paper, which will be a way to move forward in a coherent rather than a piecemeal manner. Therefore, I ask the noble Lord to withdraw his amendment.
Lord Pannick: My Lords, I am grateful to noble Lords who have spoken in the debate for the support that they have given these amendments and to the Minister for his detailed response. I sympathise with the noble and learned Lord because, with his brief, he faces the substantial difficulties of inviting the House to accept that the legal position is not as it has been stated by the European Court of Human Rights in the A case, by the Appellate Committee of this House in AF (No. 3), by the Supreme Court in Ahmed and by the European Court of Justice in the Kadi case. For all those judges essentially to agree that basic fairness is required when the Government impose a substantial detriment, whether a control order, asset freezing or something similar, on a person-and I forgot to mention the Court of Appeal in Bank Mellat-poses a certain difficulty for the Government. As we are all rightly concerned about saving public money, I respectfully suggest to the Government that it would be a considerable waste of public money to litigate again the question whether the AF principles apply in the context of asset freezing.
The noble and learned Lord mentioned the pending case of Tariq in the Supreme Court, which is concerned with whether the AF principles apply in an employment context. The case concerns alleged race discrimination. Whatever the Supreme Court decides in that case, it is most unlikely to throw any light on the issue that we are debating here and it is most unlikely to conflict with what has been said previously.
Having made all those points, I recognise that we shall not take this matter further today. I hope that the Government will reflect on what has been said-not by me but by other noble Lords who have spoken-that they will reflect on the range of judgments that have been given and that they will recognise that, if they want to impose orders of this sort, they have to comply with basic principles of fairness that involve telling the person concerned why, in essence, the detriment is being imposed on them. I have no doubt at all that the House will return to this matter on a future occasion, if not future occasions. For today, I beg leave to withdraw the amendment.
(a) the Secretary of State lays a report before both Houses of Parliament which recommends the person and sets out the process by which he was chosen,
(b) a Minister of the Crown tables a motion in both Houses to approve the report laid under this subsection, and appoint the person, and
(c) such a motion is agreed by a resolution of both Houses of Parliament."
Lord Judd: My Lords, I shall speak also to Amendments 23B, 23C, 23D, 23E and 23F. This afternoon, there have been references to the Joint Committee on Human Rights and in its report, which was published last week, it dealt with the issue covered by this amendment. In welcoming, as I do, the moves which the Government have made to try to strengthen the human rights aspects of this proposed legislation, the committee has firmly stuck to its view that the propositions which I am putting forward are the right course to take.
I take this opportunity to pay a very warm tribute to the noble Lord, Lord Carlile of Berriew, for the role which he has fulfilled as reviewer of other aspects of terrorism legislation and its implementation. He has set extremely challenging and high standards, which we should all applaud. I have not agreed with his conclusions all the time, but no one can question the commitment and expertise which he has brought to the task. He has certainly proved himself capable of making very rugged and outspoken statements when he believes that the time has come for him to do so. It is good that there is provision for a reviewer. I am really glad that the Government have made that provision in legislation.
We all know that in this extremely difficult and challenging issue of terrorism, the extremists and the terrorists operate best when there is a considerable constituency of ambivalence about what they are doing. I very much doubt whether anyone in this House would not take the most firm and uncompromising stand against what they are doing. We are clear in our own minds. However, we have to recognise that if people suffer injustice, if people are alienated, if the extremists can get to work on what they can portray as an absence of absolute transparency in all that is being done, that plays into the hands of the terrorists and their chiefs. Therefore, as in other issues we have been debating today, it is not just a matter of what is right, but of what is necessary if we are to be effective in our campaign against terrorism. We simply have to take the issue of hearts and minds seriously. That is why transparency is so crucial. What therefore is proposed in these amendments is that, following the Government's good sense in making provision for a reviewer, the reviewer should be able to be seen, and should be seen, to be independent in all that is undertaken.
I have genuinely commended the noble Lord, Lord Carlile, for his work in adjacent contexts. I hope he will not mind my saying that I think it has been done despite the arrangements that have been made to support him and within which he has operated, not because of them. I believe that his position would have been even stronger if he had been able to be seen as totally independent in all his support and operational arrangements. That is what the amendment proposes. I hope that the Government will accept that its intention is to help them to make a success of their provision.
Therefore, perhaps I may briefly cover the points. First, we think it would be sensible that the reviewer reports to Parliament. Secondly, Parliament should certainly approve the arrangements for the appointment of the reviewer and indeed the appointment of the reviewer himself. Thirdly, the secretariat-the people who work with the reviewer-should be independent of government. There is room for doubt to be exploited if people can say, "But, look, the reviewer is utterly dependent on the implementing department for support in executing his task". The noble Lord, Lord Carlile, has not fallen into the trap but we might not always have him, and therefore what is put into the Bill needs to provide for all circumstances. Finally, it is sensible that the appointment is for a finite period so that there can be no question of people saying that it has become part of the ongoing furniture and is no longer bringing a freshness and acute objectivity to the task.
I believe that the task of reviewer for the effectiveness of our campaign against terrorism is crucial. If we are going to have a reviewer, the logic is to ensure that he cannot be portrayed by anyone as anything but demonstrably independent of government machinery. I beg to move.
Lord Lester of Herne Hill: My Lords, I have added my name to the noble Lord's amendment because I am a member of the Joint Committee on Human Rights and we dealt with the issue in paragraphs 1.41 to 1.44 of our latest report. Indeed, together with the noble
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In our report, we paid tribute to the Government-it is important that tributes should be paid-for the way in which, during the passage of this Bill, they have moved in a human-rights compliant direction. One of the many ways in which they have done so, as we report at paragraph 1.42, relates to the two additional safeguards that have been included:
"First, there is a requirement that the Treasury report quarterly to Parliament about the exercise of the powers. Second, that the Treasury is required to appoint a person to conduct an annual 'independent review' of the operation of the asset-freezing regime, reporting to the Treasury which lays a report before Parliament".
"Safeguards which enhance democratic accountability for the exercise of counter-terrorism powers are clearly to be welcomed from a human rights perspective. Our predecessor made a number of detailed recommendations for improving such safeguards, including that the post of statutory reviewer of terrorism legislation should be appointed by Parliament and report directly to Parliament, on the grounds that a reviewer with a supporting secretariat within Government might suffer from a perceived lack of independence from the Government".
Like the noble Lord, Lord Judd, I pay tribute to my noble friend Lord Carlile for the work he has done as reviewer. Nothing I am about to say should be taken in any way as a criticism of his fine work. In previous debates, I have made the case that important public appointments should be made at least with the advice and consent of Parliament, not only by the executive branch. I am not suggesting that this is an occasion when that principle needs to be slavishly followed, but it is one that has a great deal to commend it. In other states that I can think of in Europe and beyond, it is regarded as good governance.
I am not in favour if disfiguring Bills with too much unnecessary detail, and there may well be other ways than this amendment of accomplishing the objective indicated by the noble Lord, Lord Judd: that is, to enhance public confidence in the perceived independence of the reviewer.
When for 18 months under the previous Government I acted as the independent unpaid adviser to the right honourable Jack Straw, Minister for Justice, one of the requirements on which I insisted, and which the Cabinet Office strongly resisted, was that I should not have an office in the Ministry of Justice and that I should not have a secretary appointed within the ministry. The Cabinet Office could not understand why I took such a strong position. I said, "Well, I am meant to be the independent adviser and it seems to me important that, as a matter of public confidence, I do not have staff from, or an office located in, the ministry". In the end, as I said that I would not do the job otherwise, the Cabinet Office had no alternative but to comply.
I appreciate the reasons why that has not happened in the case of my noble friend Lord Carlile, and I can see arguments of convenience about security and
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Lord Carlile of Berriew: My Lords, I fear that it would be negligent if I did not take a little bit of the House's time to comment on the amendment of the noble Lord, Lord Judd. I thank him for declaring my interest so generously-I mean that genuinely. Even if there are any implicit criticisms of the way in which I have conducted myself during my nine years and 25 days as independent reviewer of terrorism legislation, I have been around the political world long enough to take them on the chin and respond to them.
I am slightly surprised that I was not asked to give evidence to the Joint Committee on Human Rights prior to its most recent report. Perhaps it thought that I might have disagreed with it far more than I do, because, basically, I do not disagree with what it has said.
I remind the House how the process developed. There were a number of distinguished independent reviewers of terrorism legislation who dealt with Northern Ireland. That had become a significant but not particularly time-consuming role prior to 11 September 2001. By one of those extraordinary coincidences of life, I was approached on that very day, before the twin towers were hit in New York, and asked to carry out a function which I was told would take only a few days per year. Later during the day, after the twin towers had been hit, I asked the Home Secretary's Private Secretary if the Government now wanted someone competent to do the job. The response was that they were happy for me to do it, and I have done it ever since.
I tell that story because it is important to remember that the role of the independent reviewer has been evolving all the time, just as counterterrorism law has been evolving all the time. I am sure that the previous Government would acknowledge that, from time to time, they made mistakes about counterterrorism law. I, as independent reviewer, made mistakes in reviewing certain aspects of counterterrorism law. I suspect that the present Government-whom I support politically, at least, although I am neutral for this purpose-will also make mistakes. It is a very difficult area.
The whole process of reviewing started in my case from a relatively unsophisticated position and has developed into a much more demanding role. On the
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About office and matters of that kind, I remind those who have spoken in this debate and may be interested in it that I have always conducted the role of independent reviewer of terrorism legislation from my chambers, which I have paid for allowing me to carry out the role there. I had better give them a plug -9-12 Bell Yard. My chambers, as one would expect of a good set of barristers' chambers, has been prepared to put up with that inconvenience-possibly because I was head of chambers for six and a half years of the time that I have been doing it.
I have had an office in the Home Office, and I am glad to see my noble friend Lord Thomas of Gresford here, because on one occasion he castigated me in this House for having an office in the Home Office. He was kind enough to acknowledge afterwards that he might have overlooked the fact that in my office in the Home Office, which is situated in the Office for Security and Counter-terrorism, I have a room, quite an ample room-it even has a sofa, which is quite hard to get these days in the Home Office-which I use only because I have to keep documents in a secure place. Keeping documents in my chambers or, even worse, in my home, is insufficiently secure.
I confess to your Lordships that on my not-very-frequent visits to that office-perhaps, on average, I go there about once a fortnight-I hold meetings, but it is convenient to meet Home Office officials, police and others whom one needs to meet in a secure place in precisely that, a secure place. It would be far more expensive for government if such meetings were to take place elsewhere. Although I entirely support the notion of physical and intellectual independence being clear, it is not so easy in practice.
The Bill proposes that there should be a reviewer of yet another aspect of counterterrorism law, of which there has not been an independent reviewer up to now. It makes sense that whoever succeeds me after the end of this year-my appointment having been extended, after three three-year terms, for a very short period so that a successor can be appointed and find his or her feet-should be able to carry on as independently as I believe that I have, although I recognise that not everybody would agree with that, and should have the secretariat with which to do so.
In my most recent report on the operation of the Terrorism Act 2000, referring to the year 2009, I set out at the end a section intended to help the Government when they came to appoint my successor. I suggested that the job should become full-time, because it has taken up so much of my time that it has been difficult to do almost anything else; that it should have a proper secretariat; and that it should have an office which does not depend on the good will of, for example, the other tenants of that great institution, 9-12 Bell Yard.
I believe, however, that the crucial independence is that of the reviewers, not that of the secretariat, for this reason. If an independent reviewer is to know what is going on in the Office for Security and Counter-Terrorism in the Home Office, it is necessary to have someone on hand who understands the OSCT not just as to its organisation but as to what flows through its arteries. Equally, an independent reviewer properly funded would have in his or her office a researcher who came either straight out of the academic world or from some other sphere entirely separate from government. Actually, that does not matter. What is vital is that the independent reviewer should be able to act independently, recognising what is good advice, bad advice, partial advice and impartial advice. That is the essence of the role carried out by the reviewer.
My belief that the independent reviewer of terrorism legislation should become a full-time role with an office-which I fear would involve expenditure of further government resources at a rather bad time for acquiring greater government resources-is enhanced by the belief that when the counterterrorism review is published shortly, there may well be further aspects of counterterrorism that the independent reviewer will have to focus on, in a way which has not been incumbent on me. The case for a full-time, or near full-time, reviewer is becoming stronger, and the case for giving the reviewer permanent staff, wherever they come from, is now unanswerable, in my view. I suffered from the lack of permanent staff.
I qualify that statement by saying that I could not have asked for greater support than I have had not just from Ministers of both Governments who have been in power in my time but, more particularly, from civil servants-senior, middle ranking and junior. It needs to be said from time to time that they have displayed a discipline of independence that is possibly unique to the Civil Service in the United Kingdom. I cannot praise them enough for the help that I have been given on that basis. If anyone thinks that they should say in a debate such as this that the Civil Service is partial to one Government or another, to one view or another, I can tell noble Lords that they would be completely wrong.
As to the way in which the independent reviewer is appointed, I do not have any very strong views. Appointment by a Minister does not make the reviewer any less independent. Many public appointments have sprung surprises on government; for example, chief inspectors of prisons. Independence is in the way the person concerned operates. There are particular difficulties in this role because the independent reviewer of terrorism legislation sees things that other people do not see, including some people who claim to have seen things that they have not seen. Even worse, there are some people who claim to have seen things that do not exist; that poses difficulties when the press gives them the credibility it does. Indeed, there are one or two senior political figures who give themselves that kind of credibility, and it is completely bogus. Far more important than the appointment procedure-although I take everything that has been said about open appointments, which are obviously desirable, as absolutely genuine-the most important thing is that the person should be independent and properly supported.
It would always be my preference that the independent reviewer's reports should be submitted to Parliament. That is a logically neutral way of doing it, and there is an intellectual guarantee that if a reviewer reports to Parliament, Parliament will publish the reports and nobody can even attempt to suppress them. I have to say to your Lordships for the record that, although my reports have been submitted to the Home Secretary because of the way I was appointed, on no occasion has any draft report of mine been changed in any material particular, save where I was factually wrong, except once, and I should tell your Lordships about it because it is instructive about a flexible process.
On one occasion, I was concerned that those who were arrested in Northern Ireland for terrorism offences under the now defunct Part 7 of the Terrorism Act 2000 were unable to obtain bail over a weekend because bail could be obtained from a High Court judge only, and the High Court in Belfast did not sit over a weekend. So I wrote a report that suggested that there should be a duty judge over the weekend, and I submitted it for factual correction if inaccurate by the Home Office. I am delighted to say that one afternoon I was required to go to a red telephone where I spoke, at his request, to the then Lord Chief Justice of Northern Ireland. As a result, I changed my report; I was able to say that I was delighted that the Lord Chief Justice of Northern Ireland had decided to appoint a duty judge for every weekend to deal with bail applications. That seems to be an effective use of the reporting procedure used at the moment and of the draft.
I cannot imagine any circumstances in which any honourable person appointed to this role would be prepared to change their report at the behest of a Minister or civil servant for political reasons. It has never happened. It did not happen with any of the reviewers before I was appointed, it has not happened during my period of tenure, and I do not think it will happen with any successor I can foresee under the present or changed arrangements.
The real purpose of what I want to say this afternoon in response to the amendment moved by the noble Lord, Lord Judd, is that what happens is much more important than the process. The process must have integrity, but there are practical aspects to a role such as this that mean that simply sitting in an ivory tower, sending out letters demanding responses on matters, some of which are extremely secret, is not an adequate way of getting the job done well.
I think this may be my swansong in this role so far as this House is concerned, so I will say that I am grateful for the support and the constructive criticism that I have had from noble Lords, including some of my noble friends. I hope that we will not in future have to have a debate about something as basic as the way the appointment takes place.
Lord Davies of Oldham: My Lords, I rise briefly to congratulate my noble friend on the way in which he moved this serious and important amendment for the House to consider and triggered a constructive and significant debate. I favour the amendment. It has not always been the case in recent years that I have favoured Back-Bench initiatives from my party, but one of the
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First, I want to make it absolutely clear that none of us has anything but admiration for the way in which the noble Lord, Lord Carlile, has carried out his duties. He has described with great accuracy this evening the nature of the role and its challenges, but his reputation has run before him over these many years. The fact that he identifies that he has spent nine years and 25 days in the role shows the degree of service that he has done to the nation in a very challenging role. I emphasise that in so far as we see merits in the amendment, that is in no way a criticism of the way in which the noble Lord carried his duties-far from it. We are great admirers of the way he discharged those responsibilities.
I also recognise what the noble Lord, Lord Lester, generously said. The Government have included two additional safeguards with regard to this legislation, on which they are to be congratulated. That is part of the reason, but not the sole reason, why we in the Opposition have been moved to offer support throughout the bulk of the debates in this House. We recognise that the Government are facing challenging issues in identifying this legislation accurately. On one point I disagree with the noble Lord, Lord Lester. I am not sure that an amendment of this kind can be described as potentially disfiguring the Bill. If the amendment brings a dimension to the Bill that meets the objective that my noble friend emphasised in his introduction-taking the hearts and minds of our people with us on combating terrorism-we need the confidence of the nation in the processes that we put into place.
Lord Lester of Herne Hill: I do not think that the amendment to which I put my name does so. I was simply seeking to say that in general one should not include unnecessary detail of a disfiguring kind, but I support the amendment, which is why I put my name to it.
Lord Davies of Oldham: I am delighted to hear that. I apologise for my slight misinterpretation of the noble Lord's advocacy this evening. I thought that he put that point in to indicate that it might detract from the Bill when, of course, I assumed that he signed the amendment with the wholehearted determination to support it as far as he was able. He certainly largely did so in his contribution this evening.
Lord Sassoon: My Lords, it has been an interesting discussion. I am grateful to the noble Lord, Lord Judd, for recognising that the Government have put in this independent review process. We have modelled the provisions for the independent reviewer on those in the Prevention of Terrorism Act 2005, which we believe
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Amendment 23A requires the independent reviewer to be approved by Parliament. We have heard very clearly from my noble friend Lord Carlile that independence is not to do with the detail of the appointment process, but the state of mind and the way in which the reviewer goes about his or her business. Of course, the independence of the reviewer is absolutely essential as part of the safeguards and will be a principal objective of the appointment that is made. But that does not mean that we believe it is necessary for Parliament to approve the independent reviewer. That would be a significant departure from standard practice in these matters. The appointment of a reviewer by government reflects a longstanding principle of ministerial responsibility about appointments. It is something for which Ministers are directly accountable to Parliament and to the public. Parliament will of course be able to scrutinise the work of the reviewer and hold him or her to account through existing mechanisms; for example, through parliamentary committee scrutiny.
Amendment 23B requires the reviewer to have a secretariat that is independent from government to assist him in the task. For reasons, including those given by my noble friend Lord Carlile of Berriew, we do not consider this to be a necessary provision. The independent reviewer will be provided with a secretariat and administrative support in this case, as necessary, by the Treasury. As my noble friend has explained, in practice these matters are not easy. He has set out a model that suited his way of working. It combines, under exactly the same provisions as we are proposing in this legislation, his operating partly in his own offices and partly, for matters of security and confidentiality, within, in his case, the Home Office. That does not appear to have impacted adversely in any way on his ability to carry out the role. Indeed, he has explained why in aspects of it it has been necessary to have the provision of a secretariat of civil servants, whose work he has warmly commended. We do not see why this should be any different for the independent reviewer of the asset-freezing regime.
To make the obvious point, creating a new and independent secretariat would mean a significant and ongoing cost. It is important, especially at the present time and in the present financial climate, that the best value for money is achieved, consistent with all the other objectives that we need to meet. We believe that the Treasury can provide the necessary secretariat without affecting the independence of the review or creating further significant costs.
Amendments 23C, 23D and 23E would replace the independent reviewer's obligation to report to the Treasury with an obligation to report to Parliament. The annual reports and other ad hoc reports from my noble friend Lord Carlile of Berriew have always been provided, as he has eloquently explained, in the first instance to the Home Office to check factual accuracy,
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Given that the independent reviewer will have access to all relevant papers and evidence, including highly classified intelligence reports, and on occasion material that is being considered as part of a separate criminal prosecution, it is only sensible to ensure that published reports do not include classified or sub judice material. Parliament could certainly not undertake such a check. But I can assure noble Lords that the Government will not seek to influence in any way the outcome of these reports. The reports will be provided to Parliament as quickly as possible and will be made available to the public.
Finally, Amendment 23F states that the appointment of the independent reviewer will be for five years and that it will not be renewable. We do not believe that it is necessary to have a statutory limit on the length of time that a reviewer should remain in post. There may be valid reasons why a reviewer should leave at an earlier stage. Equally, there also may be valid reasons why a reviewer should stay in post for longer, such as the expertise that a reviewer builds up over time of the legislation that is being reviewed, which may be invaluable to the review process.
The Government consider it essential that the report is impartial and transparent. As I said in Committee, the independent reviewer will be free to review any aspect of the asset-freezing regime. I would therefore hope that the noble Lord will be prepared not to press his amendments.
Lord Judd: I thank the noble Lord for that full reply and appreciate the tone in which it was given. I also thank everyone who participated in this debate and, if I may, I have a special word for the noble Lord, Lord Lester, who supported the amendment. I say that because it is fascinating to watch even one of my oldest friends-we were at the same school-grappling with the realities of his intellectual and legal convictions, and the cause of coalition politics. I understand his predicament and think that he spoke as positively as he could. Obviously I am glad that my noble friend Lord Davies commended the amendment. It is always nice to feel that one's Front Bench is behind an amendment of this kind.
I have also a warm word of thanks for the noble Lord, Lord Carlile, for sharing so much of his experience and insight. We are fortunate to have someone of his calibre doing the job. But that is the point: he emphasised that it is the rugged independence of the reviewer that matters. We are making provision in this legislation for a future in which we do not know who the reviewers will be. They may not all be as robust and at times combative as the noble Lord has proved himself to be. The advantage of what we are proposing is that there will be a system that gives resources to and backs the reviewer in order to enable him or her to play the part as fully as they should.
The noble Lord and others spoke about costs, and of course one recognises that there may be costs involved. We are talking about justice in the face of
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This is a vital issue. I do not want to see the processes of rationalisation beginning to erode it all over again. That is how we slip and how, inadvertently and step by step, incrementally we give the terrorists and the extremists a victory. By doing so, the society we will end up with will not be the society we are trying to protect. From that standpoint, and because it is such an important issue of principle, I wish to test the view of the House.
Lord Avebury: My Lords, the statement reverses the judgment of the Supreme Court in the case of ZN (Afghanistan) concerning the Immigration Rules that apply to dependants of former refugees who have been naturalised as British citizens, and imposes a new English language requirement on persons applying to join their spouses or civil partners already settled in the UK.
Up to now, the rules have allowed British citizens and non-EEA nationals who are settled in the UK or who are being admitted to the UK for settlement to bring with them their spouse, fiancé or civil partner subject to certain conditions which do not normally include a pre-entry language requirement, the only exception being where the applicant is asking for indefinite leave to enter as a partner or spouse. In
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The justification for extending pre-entry testing, given in paragraph 7.13 of the memorandum accompanying the statement, is that it will help spouses and civil partners to integrate into British society. The Government say that it will help promote the economic well-being of the UK by encouraging integration and protecting public services. They claim that it will help ensure that spouses and civil partners are equipped to play a full part in British life from the outset.
But the Immigration Minister, the honourable Member for Ashford, has included these rule changes in a list of initiatives designed to reduce numbers. The honourable Member for Romford reinforced the point when he appeared on the BBC's "Politics Show" on 9 June. I understand that the Government estimate that the tests will produce a 10 per cent reduction in applications from spouses and civil partners-perhaps my noble friend the Minister will confirm that figure.It would mean that we are talking not merely about a delay affecting the failed applicants but about their permanent exclusion. If the number of applications is the same in every year and the failures are successful 12 months later, the 10 per cent reduction will happen only in year 1 and will be made up by those who defer taking the examination until the second year. Will the Minister confirm that it is assumed that none of the 10 per cent will get through the tests after some delay? If not, what is the Government's estimate of the proportion of applicants who drop their attempts permanently?
There was no consultation on the imposition of the language test on the grounds that the changes proposed were said to be minor and to reinforce rather than change existing policy. There was a consultation on the UKBA's original proposal on marriage visas generally in December 2007, and, the following July, it reported that 68 out of 101 respondents were against pre-entry language tests. Respondents pointed out the difficulty of accessing good-quality tuition in many countries and said that English was best learned in the UK, where facilities are available and the newcomer is already immersed in British life.
Liberty, the civil liberties organisation, reminds us that, because of the problems uncovered by that consultation, the previous Government decided on a phased implementation. In July 2008, they announced their intention to establish a cross-government departmental group to identify benchmarks that would trigger implementation of universal pre-entry language testing, to develop monitoring and reporting arrangements and to improve English services in priority areas from which most spouses apply. In the Home Office's equality impact assessment of 1 October this year, we read that the FCO, BIS,DfID and the British Council indeed formed such a group, but, as far as I know, any advice that they gave has not been published. It would be interesting to know what they said about the time that it would take to implement marriage visa reform. I hope that the Minister will agree to place copies of their reports in the Library of the House.
Without knowing even approximately how many spouses may be affected, one can see already from the adverse effects on family unity of ordinary migrants that, for some of those who must take the tests, these are not minor changes by any means. My correspondent, Mr R, originally from Kuwait but now a British citizen, wishes to bring his wife and one year-old child to live with him in the UK. He lost his well paid job here during the recession and has since been in Kuwait looking after his wife and little girl. As Mrs R is a Bidoon, it took some time and a lot of correspondence to register the little girl as a British citizen. Mr R is now facing the dilemma that the accommodation and maintenance tests can be passed only by returning to the UK and trying to get work in a hostile economic environment, leaving his wife and daughter to fend for themselves in a society where Mrs R is a non-person. It may take several years before Mr R can get the resources needed. Meanwhile, his wife must learn English without having the money to pay for lessons.
On the basis of a legal opinion from Matrix Chambers, the director of Liberty, Shami Chakrabarti, says that pre-entry English tests are discriminatory and unlawful, and that Liberty will challenge the policy in the courts. The memorandum gives the Secretary of State the power to let the applicant off taking the test where there are exceptional compassionate circumstances that would prevent them meeting the requirement. It would be helpful if my noble friend explained how that expression is to be construed. Will there be guidance on its interpretation and when can it be expected?
The equality impact assessment published on 1 October acknowledges the possibility of an Article 8 case if a family is separated because a spouse such as Mrs R is unable to meet the requirement either because she cannot access English lessons in the country of origin or because she is destitute, or both. The EIA also admits that cases might be brought under Article 14 of the ECHR on discrimination on grounds of nationality, taken together with Article 8 on the right to family life, because spouses from countries where English is the majority language are exempted from taking the tests.
Can my noble friend say how the Government reached the conclusion that making it harder for refugees' spouses to join them, and thus damaging family unity, is compatible with the Convention relating to the Status of Refugees? Will she address this question in the light of the judgment by the Supreme Court in the case of ZN, where the noble and learned Lord, Lord Clarke, said in paragraph 35 that there were,
It follows that creating barriers to entry will delay the integration of refugee families and, as children learn languages less easily as they grow older, the delay may be critical. In the Netherlands, when language testing was introduced there was a reduction of 39 per cent and 44 per cent in the number of spouse applications from Turkey and Morocco respectively, the two main countries of origin, in 2006, the first year of the tests, and that reduction continued into 2007. Will the Minister ask the Netherlands Government whether they sought advice from independent agencies on the effects of their tests on integration, particularly since they raised the standard of the tests in 2008?
On the question of who will conduct the tests, the EIA answer to question 1.2 says that initially we will accept any of the test providers who are approved for tier 2 of the points-based system and who confirm that they provide appropriate A1 speaking and listening tests. What has been the response so far of these providers, and when is the full procurement exercise for providers of English tests likely to be undertaken? In the mean time, what will the tests cost an applicant and will they be able to take them online?
Lists of approved testing centres will be needed in all the countries from which spouses are likely to apply. Perhaps my noble friend will place copies of those lists in the Library. There are further questions from both ILPA and the JCWI in their joint letter to the Immigration Minister of 1 October, and I hope my noble friend will ask him to publish his reply to that letter.
The other change in Cm 7944 is that, if the refugee is naturalised as a British citizen, for the first time his spouse has to satisfy the accommodation and maintenance requirements that apply to spouses generally to get a marriage visa. The Government's argument is that under the rules as they stand there is discrimination between British citizens who were not refugees and other British citizens who were refugees and are now naturalised. However, as ILPA has pointed out, the circumstances of the two groups are profoundly different. The cause of family disunity in the case of the refugee is that he had to leave his home country because of his well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Naturalisation does not change his status as a refugee. As I have mentioned, the noble and learned Lord, Lord Clarke, said in paragraph 35 of the Supreme Court's judgment in the case of ZN, which the Government now seek to reverse, that there were,
This principle is underlined by many of the decisions of Excom, as I have already mentioned. Have the Government asked UNHCR to comment on these changes? Can my noble friend explain why the Government consider that making it harder for refugees' spouses to join them, and thus damaging family unity, is compatible with the Convention relating to the Status of Refugees?
In the impact assessment published in August 2009, I understand that the cost of implementing these measures was estimated at between £26.9 million and £51.1 million, but that did not include the legal cost of defending human rights actions based on Articles 8 and 12 of the ECHR, the right to private and family life and the right to marry and found a family respectively. Can we have an update on the cost, including an estimate of the legal fees that will be incurred?
These changes, and similar ones in Germany, Denmark and France, are modelled closely on the system in place for several years past for dealing with spouses in the Netherlands, except that in the Netherlands family members of persons who have been recognised as refugees are exempted permanently from the test. Research there by Human Rights Watch has shown that the system hinders integration by preventing spouses from living together; and the operation of the test, coupled with the income requirements, high costs and long waiting periods, creates a strong impression-expressed also by the majority of migrant representatives interviewed by Human Rights Watch-that the measures are not about integration but rather about keeping people out of the country. In the words of one, they are "to close the door". I fear that that will be the legitimate reaction to this statement among immigrant communities here too, so that the damage to integration will not be confined to the families immediately affected. I beg to move.
Lord Hunt of Kings Heath: My Lords, it may be for the convenience of the House if I now speak to my Motion. However, perhaps I may first comment on the interesting remarks of the noble Lord, Lord Avebury. As he said, the previous Government had signalled their support for English language changes, but as part of a staged process over a number of years in order gradually to introduce the policy that all spousal applicants would have to speak English in order to better their integration. The decision to go for a phased development related to the availability of English language classes in some of the countries from which applicants were likely to come. I shall be interested in the Minister's response to the points and questions that the noble Lord, Lord Avebury, has raised.
I pay tribute to the Merits Committee for its careful attention to the two statements of changes in the Immigration Rules that are encompassed by my Motion. I turn first to the substantive statement, HC 59, laid on 28 June. Two changes are proposed in that statement to the points-based system as applied to highly skilled migrants. These are to provide for the application of a limit on applications approved under tier 1 general of the points-based system and to increase the number of points required to qualify under tier 1 general. These changes are meant to be interim and the Government are consulting on how limits should be determined
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Last Thursday, we had an excellent debate on the Government's cap policy in relation to highly skilled migrants. It was opened by the noble Baroness, Lady Valentine, and more than 20 speakers from all round the House took part. Essentially, it drew attention to the illogicality and damage to the UK of the immigration cap imposed by the coalition Government.
In speaking to my Motion tonight, I do not underestimate the challenge of immigration policy for any Government. Over the centuries, this country has experienced wave after wave of migrants coming to our shores and we have benefited mightily from the talent and commitment that they have brought. They continue to come and enrich our country. However, migration also brings pressures to many of our more vulnerable communities-pressures on jobs, public services and social cohesion. That is why the previous Government committed themselves to an immigration system that both promoted and protected British values. As a result of the action that we took, our borders are stronger than ever. We recognise the pressure that can be placed on housing and public services in many communities and we had planned to expand the migration impact fund paid for by contributions from migrants to help local areas.
We can clearly see the progress made, with a reduction in net migration to the UK and with asylum claims now down a third from their 2002 level. We also introduced the new points-based system to ensure that the need for migrants was closely aligned to the needs of the British economy. That is why we built flexibility into the system. That flexibility has essentially been removed by the cap that the Government have introduced-at first temporarily through the statement, but to be followed by a permanent cap next year. This in turn has brought immediate problems for business, universities and the arts. I believe that it threatens to seriously undermine the UK economy.
Last Thursday, in the debate, the consequences were spelt out by many noble Lords. The noble Lord, Lord Ryder, the chairman of the Institute of Cancer Research at the University of London, spoke about the institute as a world-leading cancer research organisation and said that its international pre-eminence would be at risk unless the Government adapted their cap on immigration. My noble friend Lord Giddens said that many companies are already deciding not to invest in projects in the UK because of worries about the availability of specially skilled staff. The noble Lord, Lord Lucas, talked about the impact on the independent schools sector. The noble Baroness, Lady Manningham-Buller, spoke about the need for our universities to be globally competitive and said that they were being put at risk by the cap. The noble Baroness, Lady Hamwee, raised concerns about the impact on our creative industries. The noble Lord, Lord Newby, drew attention to the critically important energy sector, where the arbitrary cap may force companies to move specialist functions to other countries. Many similar points were made by other noble Lords, including my noble friends Lord Judd and Lord Turnberg.
Tonight, we have an opportunity to ask the Government to reflect on the damage that their arbitrary cap is doing already and will certainly do in the future. I hope that the Government will also reflect on the degree of parliamentary scrutiny that they are affording to these major changes in policy. The Merits Committee report identified four matters that the House might wish to explore. First, is the Government's analysis of the impact of the changes on the number of applicants accurate? Secondly, has the case for interim limits been fully made? Thirdly, will the changes have any specific equality impact? Fourthly, what is the Government's reasoning for not putting the actual limit in the statement itself, which would then make it subject to parliamentary scrutiny?
Given the time, I would like to concentrate on the fourth point, because that is the subject of my Motion. The actual limit imposed on applications for tier 1 general is not in the statement. This limit is published separately by the UK Border Agency on its website and the key concern is that the UKBA guidance is not subject to parliamentary scrutiny, whereas the statement of change that we are debating today is. This concern about the Government making substantial changes in immigration policy without being subject to formal parliamentary scrutiny has of course been the subject of a number of recent judgments. As a result, the Government have altered the way in which tier 2 changes are to be implemented. Even then, however, in the case of neither tier 1 general nor tier 2 have the relevant statements provided for the limits. In the case of tier 2, the limits are left to the points-based system guidance.
Although we are told that these are interim limits, there is no guarantee that they will be replaced by permanent limits in the future. I am sure that the Minister will say that there is a need for flexibility. I understand that, but there is also an overriding need for parliamentary scrutiny. As the Merits Committee points out:
"Government's desire for flexibility could be met by setting an overall limit in the Rules themselves, with the UKBA then given the ability to vary the month-by-month quotas in order to provide the desired flexibility".
My Motion refers to another statement-HC 96, laid on 15 July. That statement was laid on an urgent basis following two court judgments concerning the extent to which requirements under the points-based system should be set out in the Immigration Rules rather than in the UK Border Agency guidance. I have referred to that already and, in a sense, my remarks apply as much to the second statement as to the first.
I hope that the House will consider my Motion. My understanding from the media is that the UK Border Agency announced last week that it will be issuing no more visas in October as a new monthly limit has already been replaced. I would be grateful if the noble Baroness could confirm whether that is right. If so, it is a disaster. The Government are putting at risk this country's pre-eminent status in academia, the arts and business. The Standard reported that Mr Cameron said in his speech today that,
The problem is that there are specific examples from companies showing that it is being shut out from overseas. I question whether that is the right thing to do when our economy is in a position of great fragility. My Motion is not a fatal Motion, but passing it would send a powerful signal to the Government that they need to think again.
Lord Hylton: My Lords, successive Governments have declared that they favour families and family life, and I personally have always defended the principle of family reunion for people accepted into this country on a long-term basis. Now we find that this Government are meanly changing the rules to discriminate against accepted refugees and to take away rights that they have enjoyed for many years to bring in their immediate families. The Government should bear in mind that genuine refugees have almost always suffered persecution and may well have suffered additionally through harm in the process of escaping or reaching this country. There is a strong argument for allowing refugees to bring in their next of kin when it is possible. Quite often it may not be possible for a whole variety of reasons.
I support what the noble Lord, Lord Avebury, said about language tests and what the noble Lord, Lord Hunt of Kings Heath, said about process and lack of consultation, especially on refugees. I urge the Government to pay attention to your Lordships' recent debate on immigration but, above all, I ask them to have second thoughts on family reunion for refugees.
Lord Lucas: My Lords, I share the worries expressed by the noble Lord, Lord Hunt, in this area and his concern about where we are heading on this policy. It is not that I share his fundamental opposition to it as a policy, but we seem to be implementing it in a very dogmatic way rather than taking account of the needs of the economy and putting the primacy of economic growth and recovery first. That concerns me very much.
I am also concerned by the particular subject of the noble Lord's Motion-that we should not have the cap in legislation. As he says, interim solutions can last a long time. We are an interim solution approaching its hundredth year. I find myself in many ways in sympathy with him and will therefore listen to my noble friend on the Front Bench with great interest when she comes to reply.
My particular concern is with the implementation of tier 4. The last figure that I had was that more than 60 pupils at top-ranked independent schools were still stuck abroad at half term because their process is not being completed. It is a common experience for schools
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Why are we beset with extraordinarily idiotic rules, such as the one whereby a qualification has to be approved by Ofqual if we allow someone to come into this country for more than six months to study? That means that we cannot bring people in to study our renowned courses in air traffic control or the safety of oil wells, but we can bring them in to study cake decorating. That is just daft. There are other little things. If someone comes here on a six-month tourist visa and in the middle of it decides that they would like to learn English, they have to go back home to apply to be allowed to return here to do a short course in English. Why? They are here on a tourist visa; they already have a higher status than a student is required to have. Why not make it easy for them? And if they have to prove their ability to speak English, the UK Border Agency does not accept GCSE English as proof of an ability to handle English. There may be good reasons for that-I sometimes have sympathy with that attitude myself-but it seems an extraordinary thing for the Government to do.
I urge my noble friend on the Front Bench to put the economy first. I entirely agree with where we are headed and I am comfortable with that, but I am extremely uncomfortable with the way in which it is being implemented.
Lord Judd: My Lords, I am always impressed by the matter of fact approach demonstrated towards these matters by the noble Lord, Lord Lucas, and I think it is significant that, when the Government are repeatedly telling us that our future depends on the private sector, we are hearing significant voices within the private sector questioning the whole basis of the cap in immigration policy. Either we want to be able to let things grow, or we do not. Some of the people on whom this is dependent are saying, "Be very careful with what you're doing in immigration policy".
My noble friend Lord Hunt referred to the very interesting debate that we had last week, and it would be wrong to repeat it all, but one thing that came out of that debate was the realisation that the pressures of migration are not going to reduce. We must be very careful that we do not slip into a kind of "finger in the dyke" syndrome while the dyke is crumbling. In a world in which we emphasise the importance of market, free movement of capital and goods and having international economic policies that facilitate that and strengthen those processes, there is a gigantic flaw in the market if there is not free movement of people. That will, of course, lead particularly to illegal migration-or so-called illegal migration. We have to be very careful about double standards in that regard. I apologise for referring to a point that I made last
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That is not all. Climate change may make these pressures that we are looking at seem insignificant by comparison in not very many years' time, because people will be forced to move in very large numbers. Are we preparing for that? Something that we should all take very seriously is that we cannot solve the issues of migration in the context of national policy alone. It is one area in which effective international policies are absolutely crucial. That starts with the European Union, but extends beyond it into the UN system and the wider international community.
I have one other thing to say about context-and I am glad that my noble friend Lord Hunt referred to it. We must realise that so often the most immediate pressures of migration fall on the communities least prepared for it, which are already struggling in terms of jobs, health and education provision, housing and the rest. If we want success in migration policy, we must look to that social and economic investment where the front line of the issue is really to be found.
I am afraid that there is a certain confusion coming from the Government and from different people within the Government. On the one hand, we are hearing that this will all add up to a way of controlling immigration numbers and, on the other hand, we are hearing that it is all about positive integration and making a success of integration. These two arguments are clearly not synonymous and it would be helpful if the Minister could give an authoritative view on how she sees it and what she believes it is all about in that context.
Like other noble Lords, I am sure, I have received very interesting briefing. Some of it comes from an illuminating document from the Joint Council for the Welfare of Immigrants and the Immigration Law Practitioners' Association. In many ways, the people working in the heat of the situation should have their views reflected in Hansard as they themselves have put them. I shall pick a couple of points from that brief because the people doing this work deserve honest and straightforward answers in the context of the kind of immigration debate that we are having today. The briefing points out that Adrian Blackledge, professor of bilingualism at Birmingham, has noted that,
"If these Rules are not to be withdrawn we would welcome clarification of the following: ... The circumstances in which the 'exceptional/compassionate circumstances' exemption will be met. In particular, will the following automatically be treated as meeting the exception? ... cases in which English language classes are not reasonably accessible e.g. because of geographical location, cost, internal conflict ... cases in which level A1 testing is not available in a particular country or more generally reasonably accessible ... cases in which an impecunious applicant seeks to join their spouse".
These are important questions and I hope that the Minister will deal with them, but there are others. I have drawn attention to the document and I am sure that if she has not already read it, she will now ask her officials to ensure that she is able to.
I have spent most of my life working with voluntary agencies, non-governmental agencies and the rest in the sphere of international relations, human relations, the movement of people, development and so on. One of the things that I am always concerned about is our inability to keep vividly in mind the reality of life for refugees, would-be asylum seekers and the rest-the mental anguish, the turmoil, the anxiety through which they are going. How are we, by the policies and measures that we are introducing, meeting the main basic humanitarian and humane responsibility of ensuring that these people are treated with dignity and respect as these pressures bear in upon them, and that we are not inadvertently actually making their hellish life even more of a nightmare?
That is why we have to look at these systems, not just to see that they look neat on paper but to find out how they appear to the people in the middle of the situation who are experiencing the reality and how far they reinforce prejudice in our own society as people say, "Look, all these rules are necessary-there must be something wrong with the people", instead of saying that these people are victims of the imperfections of the international system. How on earth can we best help them in their predicament while recognising that it is simply impossible at this stage to have an open-door policy? We must face up to this. It is a cultural point. It is so easy to criticise the official in the migration system who does something insensitive or wrong, but how much is the leadership working to provide the ethos and the culture in which good performance is expected of all those working in such services?
Baroness Williams of Crosby: My Lords, I shall be brief and make just two points. The first concerns the issue of the cap, and on this one I have some sympathy with the points made by the noble Lord, Lord Hunt of Kings Heath, particularly about the effects of the cap
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Anyone who knows the universities, particularly the more renowned ones, will be aware that in their scientific departments there is a substantial proportion of young men and women who have come here to study for PhDs and have then stayed on, with the agreement of the British Government, in order to strengthen the quality, the standard and the excellence of those university departments. Whether we like it or not, university teaching is today a substantial element in the prosperity of the whole British economy.
We should not get absorbed into the idea that a cap is something separate from the standing and the attraction of some of our most significant educational institutions. Immigration is central to them; it is a fundamental part of their presentation to a world in which they are still regarded as being second only to the great universities of the United States. That could all quickly disappear if we start trying to cull people of quality who would otherwise have stayed, taught and continued to do research.
My second point follows more closely the remarks of the noble Lord, Lord Hylton, who I am sorry to see is not in his place-no, he is back in his place; I am very pleased-which have also been supported by the noble Lord, Lord Judd. Quite simply, as a Government and as a country, we cannot easily go on about the sacred nature of marriage and how much we believe in it and are going to support it, while indicating to some of the most desperate people in the world that they are not going to be part of that privileged state of human existence. It would be particularly difficult not to seem hypocritical when making such a sharp distinction between those who come to this country in an attempt to join husbands or wives who are refugees-especially refugees whose position has been accepted, which is why they have been granted, or may be capable of being granted, British citizenship.
I shall give one example, not least because tomorrow morning there will be a memorial service for a great former Member of this House, Baroness Park of Monmouth, who during her time in the House, from the moment when Zimbabwe stopped being a nation that accepted democracy, fought for the right of Zimbabwean citizens to be left in this country to be able to pursue their opposition to Mr Mugabe's Government, fought for them to have the right to have their families with them and persuaded that most difficult of departments, the Home Office, to support them until such time as Zimbabwe could guarantee their freedom and safety, neither of which it has been effectively able to do up to this moment.
I mention Baroness Park because of one of her recommendations. She said that refugees are often the most brave, courageous and determined members of their own societies-people who have tried to seek asylum because they have supported democracy and the values of the European court and the European Convention on Human Rights. To deny people with such a powerful right that they have been accepted for citizenship of this country the ability to remain married to the people that they are married to, and bring up their children in a united family, is an extraordinary and last-minute kind of inhumanity. I therefore beg the Government, on both the economic point, which I have made in the context of universities, and the human point, to reconsider what they are trying to do. I do not believe that if such a case were to proceed to the European Court of Human Rights it would be anything other than rejected. There are other, and far more humane, ways to limit immigration if that is what we are thinking of. The way that has been chosen here is very unfortunate and the Government will long find it difficult to justify.
I say clearly that I do not believe that the previous Government had a very good record on immigration. I would be very sorry to see the new coalition Government follow in a tradition that has always been profoundly qualified, profoundly hypocritical and profoundly populist in the worst sense of the word.
Baroness Sharp of Guildford: My Lords, I supplement the remarks of my noble friend Lady Williams with two specific points about the implications of the caps for universities. The first relates to the tier 1 cap. I believe the number of points needed to gain entry through this category is likely to be increased. This raises a problem. The points required under tier 1 already place considerable weight on an individual's prior earnings and probably insufficient weight on their qualifications. This disadvantages academics and researchers, who tend not to be as highly paid as businessmen and bankers but, in many senses, create economic value in a different way. I ask the Minister: is there likely to be a review of the criteria and weightings used within tier 1 of the points-based system to prioritise those with skills and qualifications most likely to generate long-term economic benefit for the UK, and not just the highly paid?
My second point relates to tier 2. I understand that tier 2 applies to occupations where there is a recognised UK national shortage. Academics and researchers are not currently listed as shortage occupations. They tend to fill very specialised and niche vacancies. This change would mean that the tier 2 route would effectively be closed to universities and research institutes. This would severely affect many universities because it would affect both PhD students and the post-doctoral students who come over and fill many research posts in institutions. As the noble Lord, Lord Ryder, implied in last week's debate, it would impose severe restrictions on what such research institutions could do. Will the Minister ensure that tier 2 is sufficiently flexible to respond to future economic growth areas, and not just to existing skills shortages? I also urge the Government to consider the introduction of a specific new immigration category for research collaboration
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Lord McConnell of Glenscorrodale: My Lords, like my noble friend Lord Hunt, I enjoyed last Thursday's debate in this House. In addition to the points of detail that were raised in the debate, I particularly enjoyed the number of decent, humane contributions that enlightened the public debate in the UK on this most sensitive of issues. For far too long, far too many have displayed a willingness to direct their thinking and comment on migration in a way that reinforces fear and intolerance, rather than challenges it. When confronted with difficult issues that may risk popular opinion, politicians and legislators are faced with a choice. On an issue as sensitive as this, which goes to the core of how individuals relate to each other, the choice that we make is particularly important.
On such sensitive issues, our starting point has to be what is right. Discussion on how to win public support for a position should follow decisions on what is best for the country. Unfortunately, on migration, too much decision-making follows the reverse course, with policy based on what will appeal, what will most easily win votes and what will be politically acceptable within political parties. As a result, policy decisions damage Britain and are regularly unsustainable. Not only do I believe that hostility to cultural diversity is morally wrong and unnecessarily intolerant, I am also convinced that culturally diverse societies are more likely to be entrepreneurial, more likely to succeed and more likely to grow and prosper in the modern world. The evidence tells us that, increasingly, they do.
The Government's approach of an arbitrary cap, cloaked in, frankly, the language of intolerance, reinforces and entrenches the problems in this debate. It contradicts the Prime Minister's admirable signal of "open for business", since "not open for talent and hard work" is a poor sub-heading for that slogan. It views new people as a burden, rather than an asset. It legitimises intolerance and ignores the innovative and positive approach to the regionalisation of immigration policy, as advocated by the Liberal Democrats before the last general election. Despite dire warnings, we made a success of such a policy in Scotland. It would be a tragedy if it was never repeated and its positive lessons lost.
In 2002 I began a positive campaign for in-migration of fresh talent to help reverse Scotland's history of emigration and resultant depopulation. Population decline was the greatest threat to our future prosperity. We set about attracting people to reverse that decline. For five years Scotland's population has risen. Our society is more diverse and we benefit from the work rate, talents and enterprise that the new people have brought to our shores. The fresh talent visa scheme, the welcoming of new people into communities, the celebration of diversity by leaders and the challenging of prejudice have left us stronger, more successful, just as stable and with fewer racial tensions than we had a decade ago. Therefore, I hope that the new Government do not feel obliged to stick to a rigid and damaging approach, that my party in opposition regains its
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Baroness Hamwee: My Lords, mention has been made of last Thursday's debate. In opening it, the noble Baroness, Lady Valentine, referred to a recent report by the Economic Affairs Committee of this House which concluded that any immigration policy should have at its core the principle that existing UK residents should be better off as a result. It seems to me that the term "better off" is capable of very wide interpretation, certainly culturally as well as economically and long term as well as short term.
I find it hard to read the changes regarding language as an integration measure as integration is about far more than language. I am no linguist but I know from my own experience that being in a country whose language I do not know is the best way to learn that language. I cannot help commenting on the loss of support two or three years ago for the teaching of English as a second language.
It is a paradox that the changes discriminate against British citizens, as distinct from EEA nationals, whose overseas spouses wish to join them. However, I do not want to go down the route of criticising the statement but rather to ask questions of the Minister-she will have anticipated most of them-because I hope to be helped to support the measure. I do not ask my questions in any particular order. It has been suggested that temporary visas might be awarded to spouses to enable them to come to the UK to learn the language once they are here. I hope that the Minister will comment on that. I should be glad if she could clarify the test. With teachers teaching to an exam-if I can put it that way-to ensure that their pupils get through it rather than learn the subject, will she comment on how the tests and the teaching will be carried out? Can she tell us anything about the extent of discretion that will be given to Border Agency staff, or is the matter to be dealt with just at testing centres and you either pass or fail? Will there be enough centres in the feeder countries? Where are they? What about access for rural applicants? Is there a sufficient number of teaching centres? Teaching will be expensive. Is it proposed to charge fees for the tests? I hope not.
The noble Lord, Lord Judd, and my noble friend mentioned the term "exceptional compassionate circumstances". Those who fall within that term are by definition a small minority. It seems to me that this will mean that the proportionality test in Article 8 will not be met. Will the Minister comment on that? As regards the cap, the impact assessment says that the UK wishes to attract the "brightest and the best". We do, but as an aside I should say that a country cannot exist just with an elite. What evidence is there about the impact of the interim cap, which has now been in place for a little while? What analysis or representations have been made regarding any disproportionate impact on particular professions and sectors? The quality impact assessment identifies no adverse consequences.
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What general principles do the Government use to decide what is in the rules and what is in guidance? Can the noble Baroness comment on any impact on families that arises from this. I recall raising this matter with her soon after the election, because I had been asked to do so, and she said that we are not an "inhumane" Government. That is something which I would like to hold on to.
In the debate on Thursday, I gave a clear indication of my attitude-if noble Lords want to say "bias", that is fair enough. The sectors that were mentioned included the academic, the scientific, the performing arts and other areas that have been mentioned this evening. They were generally considered to be hugely important contributors to the UK's wealth and specifically to have considerable impact in a number of narrow discrete examples. Mention was made of the underlying principles. The speech which we have just heard by the noble Lord, Lord McConnell, is one that we should have available to refer to in the future. I valued his contribution.
We debated the UK's reputation and the importance of making and keeping friends internationally, as well as the economic benefits and the tax take that successful immigrants generate. I do not want to repeat the speech that I made, although there is a great temptation to plagiarise others, but I will say again that the use of Immigration Rules should be a facilitator not a constraint. I realise that in the context of the cap they should not be in any sense a blunt instrument.
My most important question to the Minister is to ask for her assurance that the Government are still listening and consulting informally on the permanent cap. There have been vociferous and anxious comments about the interim cap, and I hope she can assure us that these, including the debates in Parliament, will feed into decisions down the track. Will Parliament have an opportunity-engineered and ensured by the Government-to consider the permanent arrangements?
The Motion of the noble Lord, Lord Hunt, "regrets". I have to say that what I and, I am sure, others regret more is that under the previous Government we had so little opportunity, except when my noble friend Lord Avebury ensured it, to discuss these issues. I was glad to hear some of the things that the noble Lord, Lord Hunt, said today, but the reaction to the previous Government's attitude to immigration was that it was not notably consultative.
Lord Roberts of Llandudno: My Lords, I hope that I am not unduly suspicious, but I rather think there is something in the opposition Motion that is not entirely to do with the cap, but tries to embarrass the coalition. Perhaps I am just a Welshman who should not be thinking that way, but I am afraid that that might be the case.
I look back at the record of the previous Government and I see that new immigration Acts were introduced in 1997, 2002, 2004 and 2006. Another consolidated Bill was on the way and was mooted to contain more than 800 clauses. We never came to it because the general election beat us to it. Each Act was harsher and less liberal than the one before it.
I know from personal experience how we tried to amend the Asylum and Immigration (Treatment of Claimants, etc.) Bill in 2004-especially Clause 9, which sought to make failed asylum seekers absolutely destitute by withdrawing all their benefits and facilities. We on the Liberal Democrat Benches tried to get rid of that clause, but we failed. The Labour Government would not give way. That was the case throughout the previous Parliament.
We remember the campaign to end the detention of children for immigration purposes, but the Labour Government would not budge. It took the new coalition to take the initiative there. I am afraid that only one voice supported the continuation of detention-a highly regarded former Labour Minister. When the 2006 Bill was going through the House, I tried to get the Government to provide information packs for migrants to inform them of the challenges and concerns they might have on reaching the United Kingdom. The Labour Government refused to provide the packs. I also questioned the delays in the provision of visas for children's choirs from Kampala. There was delay after delay until finally, two days before they were due to leave, the visas came through.
Then there was the charge. I was concerned with music festivals. At the time there was a fee of £67 per member of every choir and dance group. That came as a tremendous blow, especially to those poorer countries that were struggling to pay for their visit to the Llangollen International Music Eisteddfod-but the Government would not budge.
Some noble Lords will remember the struggle to prevent the forced removal of gay youngsters to Iran, where they could well have faced execution. It took 80 Cross-Benchers and Liberal Democrats signing a petition to the then Home Secretary to save their lives and set a new principle for these deportations. We remember also the struggle that we had time after time over forced deportations to Darfur, Zimbabwe and the Congo. It really was difficult to get the Government to move on this.
Their average annual income is a tenth of this, at most. Therefore, when the Labour Opposition propose something that would restrict a cap of sorts, we should remember that we have had financial and other caps
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The Minister of State, Home Office (Baroness Neville-Jones): We have had a very interesting debate. I thank the noble Lords, Lord Hunt and Lord Avebury, for their flexibility in agreeing to debate their Motions together. A large number of points have been raised and I will do my best to deal with the issues to which they give rise.
The Motions before us deal with two distinct subjects: the introduction of an interim limit for applications under tiers 1 and 2 of the points-based system, which is covered by the Motion of the noble Lord, Lord Hunt; and a number of other amendments to the Immigration Rules, particularly on asylum seekers and refugees, which are addressed by the noble Lord, Lord Avebury. I will deal with those in turn, starting with the Motion of the noble Lord, Lord Hunt.
The Government certainly believe that the UK can benefit from migration-on this point there is no difference between us and many Members of your Lordships' House-but equally we do not think that the UK benefits from uncontrolled immigration. That is the purpose of the cap. At the same time, we will ensure that policy is implemented in a way that ensures that Britain remains open for business, and that we continue to attract and retain the brightest and best people who will make a real difference to our economic growth. However, we must recognise that in some towns immigration places unacceptable pressures on public services. The House will be aware that public concern has risen in line with the increased levels of migration over the past 15 years. This is obviously why our predecessors in office began a policy of limitation.
At the same time, we must ensure that those people coming here to work or study will really benefit from it, and will in turn benefit our economy. The figures show that while we may have been open, we have not necessarily been attracting those who could make that real difference. I will give an example. We know from recent research that up to 30 per cent of migrants who came here under tier 1-the highly skilled tier-did not take skilled work. Some of the work that they did was pretty unskilled. We cannot let this kind of uncontrolled migration and abuse of policy continue unchecked in this way.
I think the House will agree that it is clear that migration can certainly increase the size of the population and therefore the economy. I say to my noble friend Lord Lucas that we share his considerable preoccupation with not damaging the economic prospects of this country. Indeed, our aim is, for example, to increase the number of investors and entrepreneurs who come to this country. The previous Government succeeded in getting a rather low number of people in this category-in the low hundreds-to come to this country. We certainly want to increase the UK's attractiveness to net-high-worth individuals, and that involves creating many other things concerned with the attractiveness of our economy beyond immigration policy. Finally, for clarity, I say to my noble friend Lord Lucas that students do not come under the interim cap. Therefore,
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As noble Lords opposite have noticed, the pressures on the economy and on social services are real, as the noble Lord, Lord Hunt, specifically acknowledged. We have to bear in mind that, alongside the economic considerations that I have just mentioned, there are social considerations, which hit some communities very hard. Therefore, it is not quite right to say that introducing a policy designed to bring down the immigration levels, as we intend to do, is purely populist-driven; it reflects real needs and real pressures in communities that we have to look after.
The House of Lords Select Committee on Economic Affairs produced a report in 2008 on the economic impact of immigration. It pointed out that economic benefits depend critically on the skill levels of migrants. Returning to the point about pressures, we therefore need to be certain that we attract those with the key skills that we need. In that context, we believe that the bar is set too low and that it cannot be right, for example, for the current system to allow in people claiming to be fried chicken chefs and restaurant managers when there are 2.5 million unemployed people in this country who could fill those jobs.
The coalition programme states that we will introduce a cap on non-EU economic migration and reduce the number of non-EU immigrants. Specifically, we will introduce an annual limit on the number of non-EEA economic migrants admitted to live and work in the UK, and we will introduce new measures to minimise abuse of the immigration system-for example, via student routes. This is the purpose of the policy and, as the House is well aware, the process has begun. However, no decisions-and I mean no decisions-have been taken on the final shape of the policy or the level of the limit. We are consulting. We expect to make an announcement towards the end of the year and intend to implement the full limit by April next year.
I turn for a moment to parliamentary scrutiny. Interim measures were announced by the Secretary of State in a Statement to Parliament on 28 June this year. In that Statement, she confirmed the Government's intention to limit non-EEA economic migration. At the same time, she launched a public consultation exercise concerning the method by which the limit and levels of reduction should be achieved. She also asked for advice from the Migration Advisory Committee, which assesses need, as to the level at which the limit should be set for the year commencing April 2011, and she announced, as we are debating now, a series of interim measures to apply during the period from her Statement to 31 March 2011. The interim measures apply to tier 1, the highly skilled migrant route, and to tier 2, the route for skilled workers with a job offer, under the points-based system. They include-I make no bones about this-raising the pass mark for tier 1 and the introduction of a limit on both tier 1 general and tier 2 general.
The interim measures were implemented following statements of changes in the Immigration Rules laid before Parliament on 28 June 2010 and 15 July 2010 respectively. Statement of Changes in Immigration
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Questions were asked about the principles used to decide what is in the rules and what is in UKBA guidance. I set that out so that noble Lords can see the picture. The answer is that Section 3(2) of the 1971 Act requires that substantive requirements regulating the entry into or stay in the UK of individuals subject to immigration control must be laid before Parliament. Therefore, any substantive, as opposed to procedural or evidential requirement, that an applicant needs to meet must be set out in the Immigration Rules. I return to the way in which we are trying to implement that because I think this guidance is fairly clear. We introduced an interim limit to prevent a surge in applications before we introduce our permanent limits in April 2011, which would have led to an increase in net migration, undermining the purpose of the limit and putting undue strain on the UK Border Agency.
As the House is aware, the interim limit also set a reduction in numbers of 5 per cent, compared to the same period in the previous year; that is a reduction of 1,300, which is a relatively small number. For the interim limit, which for tier 1 is set at 5,400, we did not include the level of the limit in the Immigration Rules laid before Parliament in order to give the Government additional flexibility in implementation. Noble Lords opposite have commented on that and, at the same time, they have asked for flexibility in the operation of the system. The effect of the noble Lord's amendment would be to reduce that flexibility. He also wanted confirmation of whether we had ceased issuing certificates in October. That is the case, but we shall start again on 1 November; part of the flexibility of the system which is in operation now is that we are able to do that on a monthly basis. It acts to the benefit of migrants because we are able to carry over any limit allowance not used each month to the next month. This limit applies to main applicants and does not-I repeat not-apply to their family members or dependents.
A point was made about confirmation, but we reached the tier 1 limit only last week. We are still accepting applications so that on 1 November those who are in the pipeline will be able to get their applications granted. We do not stop the system moving; we move the granting of the applications into the next month.
The Government are committed to ensuring that the decisions of substance are announced to the House in the first instance. I have to make an apology. As the House knows, we regard it as regrettable that the Government's announcement on 28 June was released to the press before it was announced in the House. The Home Secretary, in a Statement on 30 June, made it clear that that will not happen again.
Lord Martin of Springburn: My Lords, I thank the Minister for giving way. Perhaps I may say that during my time in the House of Commons, the opposition parties-then the Conservatives and the Liberal Democrats-always complained about Ministers and departments releasing information to the press. Will she give assurances that every step will be taken to ensure that the elected Chamber and then this House are notified before information is given to the press?
Baroness Neville-Jones: The noble Lord is quite right. It was regrettable. I know what happened-it was inadvertent, but it nevertheless happened. It was regrettable and I give the noble Lord the assurance that every effort will be made not to repeat ignoring Parliament.
I also want to give the House an assurance that statements of changes to the Immigration Rules will be laid before Parliament before implementation of the permanent limit. I want to make it absolutely clear that well before any of those statements of changes are made, and those decisions are taken, there will be continuing and extensive consultation.
There has been comment in this debate and in earlier debates about the effect of these limits on certain categories, businesses and universities. We have been talking to businesses about the interim limit and the longer term. We tried to design the interim limits so that they had some inbuilt flexibility. The intra-company transfers, on which many multinationals rely, are exempt from the operation of the usual limit. There is also a small reserve pool of certificates of sponsorship for new requests. The anxieties expressed by companies have been investigated in detail with them. Sometimes we find that in another part of their business they have some certificates of sponsorship that have not been used and they have more latitude and leeway than they realise. Therefore, it is a matter of the system being understood and of the companies knowing what their position is.
We have been issuing this reserve pool of certificates if a company has had a particular need that must be met and it is certainly in the economic interest of this country. Those are issued once a month according to a set of criteria. Some employers have raised concerns about the interim limit and we often find that many of them have not used their allocations. Many companies are able to bring in the people they want via the intra-company transfer route, which is not subject to the interim limit.
The universities have also been concerned and the Government are well aware of the anxieties that they have expressed. Obviously, it is not our objective to reduce the attractiveness of British universities to those who want to come here to study, to teach, or to do their research. Again, to some extent there has been a misunderstanding of the system. Under the interim arrangements, which have been going only for a short time-in fact, since July-more than 2,400 visas have been allocated to universities to recruit the academics and the researchers they need. I am not aware that in concrete cases there are real shortages.
Under tiers 1 and 2, academics get points for academic qualifications as well as for earnings, a point raised by the noble Baroness, Lady Sharp. Therefore, the system
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The equality impact assessment identifies no adverse consequences. It makes the point that the immigration system has a very wide pool of potential users who can come here from any part of the world. The equality impact assessment (EIA) is focused solely on the impact of the introduction of an interim limit to tier 1 general and tier 2 general and an increase in the point threshold for tier 1 of the points-based system. It does not address the difficulties which some groups may have in accessing those tiers, which may be due to a wide range of social, educational, and economic inequalities from different societies in the world. Although I have sympathy with the points made, frankly, the UK immigration system cannot be used to mitigate such wider-ranging barriers and inequalities in the home countries of those who may wish to use our system.
On consultation, the interim limit on tier 2 is based mainly on past allocations to individual employers, to give employers certainty. We will take account of concerns when designing the permanent limit and will have a more forward-looking arrangement. At the moment, obviously, we are operating on historical evidence, but the idea is not to base ourselves purely on what has happened in the past but to look forward to the future needs of the economy. We will take into account the findings from our consultation with businesses.
The chief executive of the UK Border Agency has met the CBI and its members. UKBA officials have also received 3,500 responses to the consultation and have met a wide variety of businesses and other corporate partners. Our promise of consultation is not idle; it is real, and consultation is proceeding in some detail. Officials have also listened carefully to concerns and have discussed the proposed mechanism as well as the coverage of the permanent limit. We want a system that works both for the people of this country and for those who are concerned with the running of its economy.
One major theme running through the responses to the consultation is that employers attach greater importance to their ability to fill specific posts through migrant labour, rather than through a pool of highly skilled workers. There is possibly a clash between the perceived short-term need of a company to be able to find somebody easily and what the Government regard as the long-term need of this country, which is to create a pool of highly skilled workers. We need our population to be able to take those jobs in competition with others. It is for that reason, among others, that the Government are committed to limiting non-EU migration and to cutting net migration. We make no apology for that. However, as I said, we are listening to business about how that should be done and how we will make the permanent limit work. This is not a question of it not working.
We also want to give some time for the UK economy and UK businesses to adapt, so we intend to phase the system in. We will introduce the policy in ways which make the needs of individual businesses and of the country as compatible as possible at any given moment. The Department for Work and Pensions programme for welfare reform, including the work programme, should also help to make a difference. If we get these policies right over time, the nation should see reduced dependency on migration, and thus, in turn, less demand for migrant labour. We have to kick-start the skills systems in this country to provide the skills we will need in the future and limiting skilled migration is one of the levers we have to encourage business engagement in that agenda. In the short term, it clearly creates some conflict of interest between individual businesses and what we regard as the national need, but we believe that over time the national need has priority. In this way, we want to bring net migration down to tens of thousands from the unsustainable level at which it was previously operating, but we will engage in consultation throughout this.
I now move to the statement of changes against which the noble Lord, Lord Avebury, has prayed. This statement contains a number of amendments, including clarification of the formal definition of a refugee, further provisions to enable the use of online applications and the correction of certain typographical errors in the rules, but my impression from what the noble Lord, Lord Avebury, said in the Chamber is that he is principally concerned with the provisions on family reunion for people who have been granted citizenship after having formerly held refugee status, so I will deal with that issue.
The Government recognise the importance of allowing refugees to be reunited with their relatives. The Immigration Rules therefore provide that a refugee's spouse or partner and children under the age of 18 can join him or her in the UK without the refugee having to show that they can be maintained and accommodated without access to public funds. Also, we do not charge any kind of visa fee. For family members to benefit from these provisions, the family relationship must have existed before the refugee left the country in which he or she used to live. These rules apply where the sponsor in the UK has humanitarian protection, which is a status given to people who are at risk of serious harm in their home countries but who are not refugees under the 1951 convention. However, it has never been the intention that these provisions should apply to people who are not refugees or who do not have humanitarian protection. That is the policy that these amendments are intended to confirm. There is no intention or effect to change policy.
The amendments deal with the situation where a refugee becomes a British citizen. In these circumstances, the 1951 Convention relating to the Status of Refugees is very clear. The individual is no longer a refugee because he or she has,
As the person ceases to be a refugee at that stage, our intention has always been that he or she would no longer benefit from the special provisions in the Immigration Rules for refugee family reunion. Instead,
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The previous Government put in place English language tests. We have brought the operation of that test forward by all of six months, which I do not think is a very big change in the nature of the policy. We take the view that, while integration, we agree, has a great deal more to it than simply whether people can speak English, we regard English as being relevant to the speed at which individuals and families integrate in society or are able to cope with the society in which they operate. Therefore, we believe that it is wholly in their interests, as well as those of society, that they should be asked to speak English. We have put in place not unreasonable tests. The English language is spoken around the world. It will not be difficult or particularly expensive for those individuals to obtain those skills.
The noble Baroness, Lady Hamwee, asked a number of detailed questions, which I do not have time to deal with here. I will write to her and will lay the letter in the Library so that other Members of the House can be aware of the points that we have made. However, I want to reassure the noble Baroness that I do not believe that the arrangements being made are unreasonable for the individual or will cause a reduction in the numbers. We believe that, if individuals do not qualify in the first year, they will qualify in the second year. Taken over a two-year period, this is not a measure to control migration; it is a measure to increase integration.
I hope that I have dealt with the majority of points raised by Members and that I have explained the reasoning behind our changes to both noble Lords, who I hope will feel able not to press their Motions.
Lord Avebury: My Lords, I would trespass on the patience of the House if I were to make a reply to this debate in anything like that depth. But I am not criticising the Minister because she was very helpful and has answered a lot of the questions put by the noble Lord, Lord Hunt, and by these Benches. I urge her to address the remaining questions, including the important ones in the letter written to the Government
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As to the substance of these debates, on the Motion of the noble Lord, Lord Hunt, although I feel that I have some temerity in purporting to reply on his behalf, there are still obviously some gaps in the need to deal with the consultations on the effects on the universities and research institutions. I notice that the noble Baroness said several times that the Government were in detailed consultations with businesses, but I did not hear her make the same remark about either the universities or the research institutions, which are seriously affected by the changes in those two Motions. I beg the noble Baroness to let us have further information about how these consultations are being conducted, so that we can see that it is not only the businesses but also the universities and the research institutions which are being consulted in detail.
That this House regrets that Her Majesty's Government have laid before the House Statements of Changes in Immigration Rules (HC 59, laid on 28 June; and HC 96, laid on 15 July) in a way that limits direct parliamentary scrutiny of the level of the immigration cap; and further regrets that the Government's cap policy in relation to highly skilled migrants will damage the UK economy.
Lord Hunt of Kings Heath: My Lords, let me say at once that I am grateful to the Minister for her reply. I have enormous respect for the noble Lord, Lord Roberts, but I should say to him that I have brought forward this Motion because of the report of the Merits of Statutory Instruments Select Committee which identified a number of issues that it thought warranted consideration by the House. I hope that he will consider this Motion on its own merits. Surely it is right for the House to be able to express a view on the statement of changes, and I am sure that if the previous Government had introduced these changes, the noble Lord, Lord Roberts, would have had no hesitation whatsoever in voting against them.
The Minister has said that she is still listening as far as a permanent cap is concerned. While of course I am glad that she is still listening, the point here is that a permanent cap is some way off. In the mean time, the interim cap holds and is causing damage. As the noble
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The noble Baroness has said that we have to develop skills within the UK. Of course we do, but we are a great, global trading nation and we have some outstanding global industries and businesses, including world-class academic institutions and extraordinary creative arts. We are putting all this at risk with the immigration cap as it is at the moment, and we are doing it in a way whereby parliamentary scrutiny of the size of the cap is avoided. We should put this to the test.
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