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Lord Dubs: Amendment 96 is in my name and I feel that, if the mood of the House were different, I could have pushed it pretty hard. I shall briefly explain why I think that it is a matter of importance to the Bill and to our general approach to orders. At the moment, with almost no exceptions, orders are unamendable in this House. If we are unhappy about them, we can only vote them down, in which case we are breaching the convention that we should not undermine something that has come from the Commons where the Commons cannot have a second say. As your Lordships know, if we vote an order down, that is the end of it and the House of Commons has to start the process again. That is an unsatisfactory position on orders and something to which-unless the Minister accedes to the amendment today-I am sure the House will return when we consider Lords reform. The way that this is operating is not right.
When I was a Northern Ireland Minister, most legislation was done by order. Sometimes, the House would be faced with an order 40, 50 or 60 pages long-longer than many Bills-and yet it was totally unamendable. People in Northern Ireland were pretty fed up, saying, "There is a major change in our housing policy and it is going through without an opportunity for it to be debated properly here". Now, of course, they can do it as they wish in Stormont.
We know that many orders are to give effect to EU legislation. If I understand the Government's EU Bill correctly, there will be fewer of those in future, as they will be replaced by primary legislation. The EU Bill has not gone through and perhaps that part of it will not-I hope that it will not. If orders to give effect to EU legislation were amendable, we would save the Government a lot of effort with the need to have primary legislation and, at the same time, achieve the objective of giving this House a proper say.
I think that these arguments are pretty sound. I remember that, when I was in the Commons, we found a Bill under which there was an order-making power and, for reasons that totally escape me today, it was possible to amend that. We wondered at the time why Parliament could not amend orders. This seems a very reasonable proposition. I do not think that it would open the floodgates and it would make sense-nowhere more so than in this Bill. A lot of the argument about this Bill is due to the fact that, when the day comes and the Government table the order to give effect to changes to many quangos, we will have no chance to amend it. There may be consultation beforehand or other methods, to which my noble friend Lord Hunt referred, but, on the whole, we will not be able to make an amendment. This is such a simple proposition that I do not understand why it has not been adopted long ago and why it cannot be adopted in the Bill.
Lord Adonis: Can my noble friend clarify one important point? As I understand the amendment in the name of my noble friend Lord Hunt, proposed new subsection (10) in effect gives the House the power to amend an order by agreeing to a recommendation by a committee that an amendment should be made. Does that not meet the point that my noble friend is trying to make in his amendment?
Lord Dubs: It does partly, but Amendment 96 is a little stronger, as it would mean that, when faced with an order, we could simply amend it without any preconditions. If I understand it correctly, the other amendment has a precondition in it, whereas this one does not. My argument is that that would be right not just for this Bill but for the run of orders.
Lord Lester of Herne Hill: Amendment 69 seems unexceptionable. I do not understand why the word "may" is included in Clause 11(1) and the word "must" is in Clause 11(2). I do not understand why there is a need for any discretion in that area. The clause refers to a situation in which,
If he is satisfied with all that, he or she should have the obligation to lay a draft order and explanatory document before Parliament. Unless the Minister has some special reason why he needs to retain a discretion, I agree with the noble Lord, Lord Hunt of Kings Heath, on that narrow amendment.
My noble friend Lord Phillips of Sudbury's Amendment 69AA is on proportionality. This is a bit complicated, but I hope that I have got it right. I like to think that the noble and learned Lord, Lord Mackay of Clashfern, and I are godparents to Clause 16 and, especially, to including proportionality. The principle of proportionality simply teaches that you must use necessary and proportionate means to accomplish a legitimate aim. The Minister is proposing to leave out from Clause 11(2) the words,
in Clause 11(2) is presumably that they are unnecessary, because the reasons will be the reasons and, once the reasons are given in the Explanatory Memorandum and otherwise, one has in the Bill the point that my noble friend is making-the Minister will have to state the reasons for the order and then under Clause 16 he or she will have to comply with the principle of proportionality. It therefore seems to me that, subject to drafting points, the substance of what my noble friend Lord Phillips is seeking is already catered for. The principle of proportionality is fully embodied in the Bill because it requires the Minister to state the reasons. When the Minister legislates by order, he or she must do so in a way that is proportionate to achieving the legitimate aims in the reasons. I hope
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Lord Adonis: The case made by my noble friend Lord Hunt in respect of the super-affirmative procedure is extremely strong. There is a fundamental point of principle here: do we take ourselves, the House of Lords, seriously as a legislature? If we do, I do not believe it right that we should delegate the degree of power that we are delegating to the Executive without retaining more of the power of control simply to debate and amend the proposals that come forward in respect of the merger, abolition or reconstitution of public bodies. The critical factor at stake is that all these bodies were established by statute. They are all important bodies-you just need to read the schedules to see the importance of the bodies listed-and they were all subject to lengthy debate in Parliament when they were established. All that my noble friend Lord Hunt is seeking to do, with the full authority of the relevant committee of the House, is to give the House a somewhat larger power to amend orders and to require proper debate and a proper account by the Government to Parliament where they are not minded to take account of that debate and any amendments that are proposed. It seems to me that, if we are not prepared to stand up for the rights and responsibilities of this House to that extent, we are quite wrongly denuding ourselves of our proper responsibility as a legislature.
Lord Whitty: I can only agree with what my noble friend Lord Adonis has just said with regards to Amendment 71. However, I rise in the regrettable absence of the noble Lord, Lord Newton of Braintree, to speak to Amendment 69D. This refers to the functions of those bodies that are to be abolished in Schedule 1 and would require the Government to give a clear indication of which functions are to be retained and by whom they are to be carried out.
I draw attention to this and have become active on this Bill because of an interest of mine as the former chair of Consumer Focus. Consumer Focus is still in Schedule 1, but, as I have previously argued, that is probably the wrong place, in that the Government have indicated that they want to transfer its functions rather than to abolish them. While Consumer Focus remains as a body to be abolished, it is right that the legislation should require the Government to specify to whom its functions should be transferred. The Government's current indication is that they wish to transfer the majority of its functions to Citizens Advice and some of its functions to a body relating to Northern Ireland law, the Consumer Council for Northern Ireland. Citizens Advice is a charity incorporated under English law and separately under Scottish law. It is not at all clear that the Government will actually transfer all those functions to Citizens Advice or, pre-empting an amendment that the Minister will move in the last group, whether Citizens Advice would necessarily agree to take on those responsibilities; as an independent charity, it has a right to refuse to do so.
Developments in Scotland and Wales may well also result in somewhat different arrangements being set up after the forthcoming elections. Indeed, arguments
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In the mean time, I endorse the general view expressed by my noble friends Lord Adonis and Lord Dubs and by the noble Baroness, Lady Thomas, that at some point we are going to have to look at the way in which we deal with the secondary legislation under this Bill, because the normal form of so doing will not be adequate for many of these changes.
Lord Blackwell: My Lords, I am not convinced that the additional procedures set out in Amendment 71 are necessary. I should stress that since I am a member of the Delegated Powers Committee, and a board member of an organisation that is referred to in the Bill, I am speaking in a personal capacity.
Because of the way in which the powers of the Government have been limited as the Bill has passed through the House and the Government have introduced amendments, the proposal that is now set out in the Bill for an enhanced affirmative procedure does what is required. It gives committees the opportunity to state issues and make the House and the Government aware of those issues, and gives the Government the opportunity, which they do not have normally, to amend the order to take account of those concerns. That is an appropriate and proper amendment.
However, I am nervous about transferring more power to any committee for it, of itself, to seek to amend these orders. Moving power from the Floor of the House to those committees would take the role of committees further than it should be taken. As I see it, the role of the committees works well when they are advising the House and they are raising issues. Generally, they deal with such contentious areas-
Lord Adonis: Would the noble Lord be prepared to give that power to the House as a whole, because at the moment there is no other means of amending a statutory instrument? If he is not prepared to give that power to the House as a whole or to a committee, he is not prepared to accept that the House has any power to amend a statutory instrument, which is the central point of principle at stake in this amendment.
Lord Blackwell: I thank the noble Lord for his intervention. I was going on to say that, if there were to be a change in procedures, the change would out-favour the one recommended by the noble Lord, Lord Dubs, to enable that debate to take place on the Floor of the House. However, I am reluctant to see a committee venture into areas that became highly controversial and that moved outside the narrow debate around the appropriateness of the regime and its constitutionality, and end up, in effect, having votes in committees that
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Given the way in which orders are dealt with, there is an argument for considering the suggestions made by the noble Lord, Lord Dubs. A more significant issue is whether we ought to have and exercise the power genuinely to vote on these orders. Frankly, if we do not, it is all a bit of a charade anyway. Therefore, I support those who have suggested that it is worth, in the wider scope of things, looking at reforms to procedures to allow amendments to be made and voted on on the Floor of the House and reconciled with the other House. However, that is not achieved by the Opposition's amendment to move to a super-affirmative procedure, which would create undesirable complications. The way in which the Government have proposed to deal with it is the best compromise within the existing structure of orders.
Lord Mackay of Clashfern: My Lords, on Amendment 69 and "must" instead of "may", it is a normal convention on the whole that Ministers, if they have the power to do something, are left with that, but it is not a major point one way or the other. However, as for the enhanced procedure and the super-affirmative procedure, that is primarily a matter for Parliament to consider generally, not just in relation to the Bill. The way in which I have seen this Bill develop suggests to me that everyone in the House is agreed that there should be a procedure for a review of public bodies from time to time. The noble Lord, Lord Hunt, has made that very clear in moving this amendment.
We have gone a long way to developing that kind of procedure for the future, because the Bill has in it the power to continue with amendments to the schedules. It now provides for certain entities in the schedules to drop out after a time-a type of sunset clause for the schedules. Therefore, you can always bring one in. If and when another review is required-who knows, it might not be until another Government come along-the procedure that has been laid down here would work perfectly well simply by introducing a public general statute to amend the schedules. It might be among the shortest statutes ever proposed, which of itself would be a good thing.
Here we have a situation whereby, before the procedures start, you have to get the body in question into a public general statute such as the one that we are considering now. Parliament has already used its power to allow that; what the procedure should be thereafter is a matter to work out in practice as the Bill goes forward. I am not in favour of enacting the super-affirmative procedure where Parliament has already decreed the particular subject matter of the Bill. I prefer that that is left. As the noble Baroness, Lady Thomas of Winchester, suggested, this whole subject needs to be considered in due course, but not as part of the present Bill. After all, we have done a fair amount on the Bill already and there is a limit to what is practically possible.
Lord Neill of Bladen: My Lords, the noble Lord, Lord Adonis, expressed the view that there should be an opportunity for parliamentary review when the
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Lord Phillips of Sudbury: Is the noble Lord suggesting that Clause 11(2), which requires an explanatory document to be produced to Parliament before the order is laid for consideration, is different from what he is suggesting?
Lord Neill of Bladen: No, my Lords. The word "must" is already in Clause 11(2), and attention has been drawn to that fact. There is no "must" in line 3 on that page, which is where there ought to be a requirement. That is what the amendment is dealing with.
Viscount Eccles: My Lords, I think it was Hegel who got us all into the categorical imperative of "must". I have certainly tried to organise my life on the basis of using the word as infrequently as possible, but I defer to more expert opinions as to whether it should be "must" rather than "may". I would like to emphasise the point, which was made much more elegantly than I can by my noble and learned friend Lord Mackay of Clashfern, that we are considering this Bill. I, too, have very strong views about the way in which orders and statutory instruments are laid and the way in which the House considers them.
In thinking about that, my mind goes back to home information packs and the big casino in Manchester. It is not unknown that this House decides that it is not going to live with what at that time was an ordinary affirmative order rather than a super-affirmative order, but Amendment 71 is in danger of over-elaboration. If both Houses of Parliament take Clause 11 as it is in the Bill at present, they have the opportunity for full and adequate scrutiny and, by the recommendations of committees, to put Ministers in the position where they will have to bring forward an amendment.
On the question of amendments, the point is well illustrated by the Bill. Not many amendments are moved by Members of this House that, even if they are approved, remain as they were on the day of approval. They need to go back to the parliamentary draftsmen. The committees of this House do not have parliamentary draftsmen. As an amending and revising Chamber, we do our best work when we persuade the Government that they should take an amendment away and make it into something that will really work as legislation.
Very briefly on the matter of over-elaboration, the amendment of the noble Lord, Lord Hunt of Kings Heath, would make us go back to the consultation and the representations made in that consultation three times-not just the first time because the Minister must lay it out a second time and then, as in the proposed subsection, a third time. That is overly repetitious, because unless it is also specified that something should be put out to a new consultation, the process will be overly elaborate.
I should like to make one other point. If a draft order is referred to committees of both Houses and those committees have the power to put forward amendments but those amendments are in disagreement, it will take a very considerable time to sort out that kind of disagreement between the two Houses. Given that many of the things that will be done when this Bill is enacted are in fact pretty straightforward, simple and not very controversial, to over-elaborate the process is a mistake.
Lord Maclennan of Rogart: I rise briefly to say that I agree with my noble and learned friend Lord Mackay of Clashfern. The issue raised by Amendment 71 is of great importance and ought to be considered in the wider space of the practices of the House as a whole. It does seem anomalous that we cannot amend secondary, subordinate legislation, and therefore it would be attractive if proposals could be referred to committees for consideration because it could be a time-saving approach. It would allow committees to consider in detail matters that cannot effectively be considered in a debate on a statutory instrument that lasts one and a half hours. However, we have some of that process in the House already.
The wide-ranging effects of Amendment 71 would delegate too much power to committees. I take the view that a case still has to be made that committees should have binding authority to prevent legislation being considered on the Floor of the House. That, as I understand it, is what this amendment could result in. It is also not entirely clear if the committee considering whether or not a draft order should be approved under proposed subsection (9) would be an existing committee that took it upon itself to do so. I think that more than one committee has that power, or a power to consider draft orders. It might be the intention of the noble Lord who has moved the amendment that this should be for a special ad hoc committee and not for the Select Committee on Delegated Powers and Regulatory Reform. That is not made clear. However, if an ad hoc committee had to be set up, that would be another stage in the process of deciding whether the measure was of sufficient importance to require that to be done.
This is not a matter to be decided on Report, however important it may be-I am quite clear that it is immensely important. It should be referred for wider consultation in the House, perhaps by the Procedure Committee. This is also a matter that should be considered in conjunction with another place because both Houses have an interest in it. It might make more sense to do that in a Joint Committee.
Lord Taylor of Holbeach: My Lords, this has been an important debate and probably gets to the nub of
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In particular, I hope I can reassure noble Lords that the bespoke scrutiny process that the Bill provides for is the proper one for Parliament, giving Parliament proper input into the shape of the secondary legislation. As noble Lords will know, it has been specifically designed for the Bill and included in government amendments. I am grateful for the support of my noble and learned friend Lord Mackay of Clashfern, who has been prepared to give advice on the Bill and the particular constitutional challenge that it has presented, and for the support of my noble friends Lord Blackwell and Lord Eccles for the way in which they have recognised that the process that now exists in the Bill provides for a proper scrutiny process.
I start with Amendment 69, which was first debated in Committee on 9 March. I do not apologise for in effect repeating my remarks from that debate as this amendment is quite technical in nature. It would make it explicit that a Minister wishing to make an order following a period of consultation "must" lay before Parliament a draft order and explanatory document. While Clause 11 states that a Minister "may" lay a draft order and explanatory document, it would in practice not be possible to make an order without following this procedure. Our current drafting reflects the fact that, following a period of consultation, the Minister is not obliged to proceed with the proposal. To my mind, this appears right and proper. I think my noble friend Lord Lester of Herne Hill indicated that this was his interpretation of the current wording.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister and sorry to interrupt. I was trying to grasp why one needed a discretion, and the Minister has indicated that one needs one because not every order will be required to go through this procedure. That is why it says "may" and not "must". If that is the position, then I understand it.
Lord Taylor of Holbeach: My Lords, I can confirm that every statutory instrument will have to be accompanied by an Explanatory Memorandum. That is very important if a statutory instrument is proceeding under this Bill.
Lord Taylor of Holbeach: I make my point quite simply: if he does not lay an order, he will not get it approved. It is as simple as that; that is the nub of the issue. In order to get the change he requires, he has to lay an order and "may" is the correct word to use, in parliamentary terms, as the noble Lord will know.
Lord Hunt of Kings Heath: The next subsection uses "must". I know that this is a very familiar argument, but it is quite clear that "must" is often used in legislation and I do not see why it is not used in this case.
That is the premise. If that is the premise, surely the Minister will have to lay a draft order and an explanatory document. If that is the position and there is no scope for discretion at that stage-because he or she has already made the determination that it is appropriate to proceed-I do not understand why it does not say "shall" or "must". It says "must" elsewhere and it seems to me that it is a situation where it is a "must" and not a "may". Maybe I have got it wrong.
Lord Mackay of Clashfern: My Lords, the point that is covered by "may" rather than "must" is that, in the light of the consultation, even if the Minister wants to make an order, he may well think it is right to do something else first; for example, have further consultations and make modified proposals before he proceeds with the order. That is why, in this context, the word "may" is often used when many of us might have thought it was going to happen anyway. That is the reason and I believe it is a good reason.
Lord Phillips of Sudbury: My Lords, I hate to disagree with a noble and learned friend and former Lord Chancellor, but I have to disagree with the noble and learned Lord, Lord Mackay. It is quite clear that this is posited on the basis that, having had the consultation, having considered all things, the Minister then considers it appropriate to proceed with the making of an order. That is perfectly clear. He is then en route to making an order. It then goes on to say,
Lord Mackay of Clashfern: I am sorry to respond, because this is Report and it is the last thing I want to do, but it seems to me that the point is that it says, "make an order", it does not mean to say that it is an order in anything like the form that is thought of so far. The consultation might well open up new possibilities altogether. The Minister wants to make an order, he wants to proceed, he may do it this way or he may do something else in the way of further consultation and then go ahead with an order different in substance from what he had proposed in the original consultation. That is the reason for it.
Lord Taylor of Holbeach: As it is Report and we are not supposed to be arguing in this way on these matters, I hope the House will accept what I said. This is the advice that I have received and, indeed, the House has received from a number of noble and learned Lords-well, one noble and learned Lord and other noble Lords who might also be learned, but not in the parliamentary sense.
I move on-I will be on safer ground, perhaps-to look at Amendment 69AA, tabled in the name of my noble friend Lord Phillips of Sudbury. It would require an explanation of why a Minister considers the order to be compatible with Clause 16(3), which refers to the need for an order to be proportionate to the reasons for it. We have not included such a provision within the Bill on the grounds that the explanatory document accompanying an order will set out the reasons for that order as a requirement of Clause 11. It will then be for Parliament to decide whether to approve an order and, if necessary, for the courts to assess subsequently whether an order is proportionate in relation to the reasons given.
As we know, my noble friend Lord Newton is not here, but I am pleased that the noble Lord, Lord Whitty, spoke to my noble friend's amendment, because Amendment 69D would require a Minister, when bringing forward an order under Clause 1, to set out whether any of the functions of a body to be abolished would continue and if so, where they would be exercised in future. I consider this amendment to be unnecessary as such information would as a matter of course form part of the consultation on the proposal required under Clause 10 and the reasons for the order required by Clause 11(2)(a), so we are back to the process of consultation and the explanatory document providing for that.
In connection with Consumer Focus, I remind the noble Lord that Clause 1 allows for the transfer of functions. We will be consulting on our proposals specifically in respect of Consumer Focus, as I have explained, later this year.
The effect of Amendment 96 in the name of the noble Lord, Lord Dubs, would be to clarify the date at which an order made under the Bill, if amended by Parliament, would come into force. I remind the noble Lord that there is currently no facility in the Bill for orders to be amended by Parliament, and I do not propose that such a facility should exist. However, I remind him that, under the enhanced affirmative procedure contained in the Bill, a Minister is at liberty to lay a revised order following the 60-day period. The Minister can take account of representations from Parliament and elsewhere in considering the form of the order as it proceeds.
The wording of Amendment 96 appears to be drawn from the Civil Contingencies Act-that was well spotted by someone, but not me-which was designed to create a framework for dealing with emergency regulations that necessarily circumvent the usual channels of parliamentary scrutiny. In such a specific circumstance, the argument for the amendability of orders is of a different order, but I do not believe that the Public Bodies Bill is of a comparable nature.
I turn to the question of the mechanism by which Parliament will scrutinise these orders, and specifically
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I am sure that by now the noble Lord is fully aware of the reasons why the Government will not accept this amendment. Accordingly, I ask the noble Lord to reflect on how far the Bill has come since we first debated this issue during the first Committee session. Since that time, a combination of the expert scrutiny of the committees of this House and a genuine willingness on the part of the Government to engage have led to a series of changes that have significantly restricted the scope of the powers that the Bill gives to Ministers. Government amendments on consultation and procedure have been accepted and now form part of the Bill, ensuring a robust and thorough scrutiny process. Clause 16 now firmly and objectively protects the necessary independence of some public functions-precisely those functions that had caused this House such concern during the early debates on the Bill. Schedule 7 and Clause 11, as was, have of course been removed, dramatically reducing at a stroke the scope of the Bill. The entries in the Bill's schedules will now be sunset after five years, ensuring that bodies do not remain subject to the Bill's powers in perpetuity. Lastly, and I take this to be most crucial, this House has thoroughly debated, in primary legislation, whether it is appropriate for each of the bodies in the schedules to be subject to the powers in the clauses to which those schedules apply. In some cases, this House has exercised its right to remove bodies from the schedules.
In this context, it is clear that the scope of the powers granted under this Bill will simply not be of the same order as those attached to legislation which has often been cited in comparison, such as the Legislative and Regulatory Reform Act 2006. I need not remind noble Lords that that Act gives Ministers a general power to amend primary legislation without any equivalent to the debates on the entries in the schedules we have had during the passage of this Bill. If Amendment 71 was accepted, a Select Committee of either House could veto or amend any order laid under this Bill, regardless of the fact that each House will have necessarily given its consent, through primary legislation, to confer a power on a Minister to make such an order in relation to the body or bodies involved. The Government cannot accept that, given this prior scrutiny and expression of the will of Parliament in primary legislation, a single Select Committee should thereafter be able to frustrate the order-making process in this way.
Under our own proposals, the draft order will have already been subject to appropriate consultation as set out in Clause 10, and the current procedure in Clause 11 gives both Parliament and its committees a full opportunity, if they desire it, to scrutinise the order and to make recommendations in relation to it before
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Perhaps it is appropriate now to thank my noble friend Lady Thomas of Winchester and her committee for its series of reports which presented us with a considerable challenge with this Bill. Meeting that challenge has greatly improved the Bill and we owe a great debt of gratitude to her committee for the way in which it has scrutinised this legislation-it has greatly helped the evolution of this Bill. She made interesting comments on the way in which committees of this House might work in scrutinising the statutory instruments that might come up under this Bill. My noble friend Lord Maclennan of Rogart was correct. This is something that the Procedure Committee has to consider-it is not a matter for this Bill.
The Delegated Powers Committee's 5th report on the Bill suggested that a provision for Parliament to amend secondary legislation would be extremely difficult to implement, particularly given the absence of a mechanism for resolving differences between the two Houses. However, my fundamental objection to Amendment 71 is that the Government, reflecting a manifesto commitment of both coalition partners and the coalition agreement, have taken the decision to reform public bodies. This is not a decision with which the noble Lord, Lord Hunt of Kings Heath, disagrees. He has been supportive of the process throughout. The Government brought forward a Bill in relation to these proposals which has received intense scrutiny in this House. The Government have, furthermore, worked with noble Lords to limit the scope of the Bill in a number of significant ways and devised a procedure that will allow for proper scrutiny of the detailed orders that follow. To impose a veto on these orders by a single Select Committee of either House and a capacity for Parliament to amend orders under this Bill is excessive, bearing in mind that Parliament will have given its explicit consent both to the Bill as a whole and to the inclusion of each separate body in the schedules through primary legislative process before any such orders could be laid.
I hope the noble Lord, Lord Adonis, will see that this is what makes this Bill somewhat different from the Regulatory and Legislative Reform Bill. We are dealing with specific proposals laid before Parliament in primary legislation. I am not opposed to proper parliamentary scrutiny of government policy; my approach to this Bill and the Government's proposed enhanced procedures demonstrate that. However, I am opposed to a procedure that would not increase the quality of such scrutiny, but would endanger our ability to deliver the more efficient and effective system of public bodies that the public rightly expect. That was promised in the coalition agreement and has the support of noble Lords from all sides of the House and, indeed, from the Benches opposite. I therefore
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Lord Hunt of Kings Heath: My Lords, I am sure that we are all very grateful to the noble Lord, Lord Taylor, for his extensive response to this debate. I will make three short points. The noble Baroness, Lady Thomas, is right to raise the wider question of how secondary legislation is dealt with in your Lordships' House. The Royal Commission on Lords Reform looked at this extensively. One of the outcomes was the development of the Merits Committee but I am sure we need to go further. I hope that when draft legislation on House of Lords reform finally reaches us, we will see that there has been some discussion of that matter. I do not believe you could elect a second Chamber, or make proposals to do so, without looking at the implications for secondary legislation.
On the question of "may" and "must", I have looked again at the wording of Clause 11. This order falls to be made only after the Minister considers it appropriate to proceed with the making of an order. On that basis, the word should be "must". On the question of Amendment 71 and the super-affirmative procedure, I accept that the noble Lord, Lord Taylor, has tabled several welcome amendments to improve the Bill and allay many concerns. I just say to him that, none the less, this Bill gives Ministers considerable powers to amend primary legislation through what can be dramatic changes to a number of the public bodies listed in the Bill. On that basis, it is right that Parliament should assert to itself the ability for strong and robust scrutiny. My super-affirmative proposition allows that to happen. I very much hope the House will support me in that regard. I wish to test the opinion of the House.
"(i) the order serves the purpose in section 8(1), and"
"( ) if the order contains provision made by virtue of more than one entry in Schedules 1 to 5, explain why the Minister considers it appropriate for it to do so, and"
(a) stating whether any representations were made under subsection (6)(a); and
(b) if any representations were so made, giving details of them.
(9) A committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (7) and before the draft order is approved by that House under subsection (8), recommend under this subsection that-
(a) the draft order should be approved in its current form;
(b) the draft order should be amended;
(c) no further proceedings be taken in relation to the draft order; or
(d) it is more appropriate for the proposals raised in the draft order to be progressed through a bill rather than a statutory instrument, having regard to-
(i) the public interest in the functions or decisions of the body;
(ii) the need for a body to act independently of government or ministerial direction;
(iii) whether the body considers issues of national importance.
(a) rejected by a resolution of that House; or
(b) the House has approved the order as revised by the committee.
(11) Where a recommendation is made by a committee of either House under subsection (9)(c) or (d) in relation to a draft order, no proceedings may be taken in that House under subsection (8) unless the recommendation is in the same session rejected by a resolution of that House.
(a) a revised draft order; and
(b) a statement providing details of-
(i) any representations made under subsection (6)(a); and
(ii) the revisions proposed.
(14) However, a committee of either House charged with reporting on the revised draft may, at any time after the revised draft order is laid under subsection (12) and before it is approved under subsection (13), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.
(15) Where a recommendation is made by a committee of either House under subsection (14) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House unless the recommendation is, in the same session, rejected by resolution of that House.
"(b) the Welsh devolved functions of the Environment Agency,
(c) the Welsh devolved functions of the Forestry Commissioners, or
(d) the functions of a Welsh Flood and Coastal Committee."
(a) a new body,
(b) the Welsh Ministers, or
(c) any other person exercising Welsh devolved functions."
"( ) In this section "Welsh Flood and Coastal Committee" means a Regional Flood and Coastal Committee established under section 22(1)(c) of the Flood and Water Management Act 2010 for a region wholly or mainly in Wales.
(a) an agricultural dwelling-house advisory committee for an area in, or consisting of, Wales;
(b) an agricultural wages committee for an area in, or consisting of, Wales;
(c) the Environment Protection Advisory Committee established pursuant to section 12(6) of the Environment Act 1995 (Wales);
(d) the regional and local fisheries advisory committee established pursuant to section 13(5) of that Act (Wales);
(e) a regional advisory committee maintained under section 37(1)(b) of the Forestry Act 1967 for a conservancy in, or consisting of, Wales.
(a) the Welsh Ministers, or
(b) any other person exercising Welsh devolved functions.
(3) The Welsh Ministers may by order modify the funding arrangements of inspectors appointed by the Welsh Ministers under section 86 of the Water Industry Act 1991 (assessors for the enforcement of water quality).
(a) modify its constitutional arrangements;
(b) modify its functions;
(c) transfer any of its functions to-
(i) the Welsh Ministers;
(ii) any other person exercising Welsh devolved functions;
(iii) a company limited by guarantee;
(iv) a community interest company;
(v) a body of trustees or other unincorporated body of persons."
(a) to modify the constitutional or funding arrangements of the transferor or transferee (subject to subsection (4)),
(b) to modify functions of the transferor or transferee, or
(c) to confer powers of direction on the Welsh Ministers in relation to functions transferred.
(3) Where an order under either of those sections modifies functions of a body or office-holder, the power in subsection (1) includes power to make consequential or supplementary provision to modify the constitutional or funding arrangements of the body or office (subject to subsection (4)).
(a) the Environment Agency,
(b) the Forestry Commissioners, or
(c) any other cross-border operator.
(6) The Secretary of State may by order modify the constitutional or funding arrangements of a person referred to in subsection (4)(a) to (c) in consequence of an order made by the Welsh Ministers under section 12 or (Powers relating to other bodies).
(7) The reference in subsection (6) to modifying the funding arrangements of a person includes modifying the extent to which the person is funded by Welsh Ministers, but the Secretary of State may only modify the extent to which a person is funded by the Welsh Ministers with their consent."
(a) a Welsh devolved function relating to the environment exercised by one to be exercised by the other;
(b) co-operation in relation to the exercise of their respective Welsh devolved functions relating to the environment;
(c) the provision of administrative, professional or technical services by one to the other for purposes relating to the exercise of functions in or as regards Wales.
(a) the Environment Agency;
(b) the Forestry Commissioners;
(c) any other person exercising Welsh devolved functions relating to the environment."
(a) the Environment Agency,
(b) the Forestry Commissioners, or
(c) any other cross-border operator."
(1) The Welsh Ministers may make an order under section 12 or (Powers relating to other bodies) only if they consider that the order serves the purpose of improving the exercise of public functions having regard to-
(c) economy, and
(d) securing appropriate accountability to Welsh Ministers.
(a) the order does not remove any necessary protection, and
(b) the order does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise."
(a) the Environment Agency,
(b) the Forestry Commissioners, or
(c) any other cross-border operator.
(2) The Secretary of State's consent is required for an order under section 12 or (Powers relating to other bodies) made by virtue of section 13 which in any other way modifies the functions, other than Welsh devolved functions, of a person referred to in subsection (1).
(a) any body or person exercising public functions to which the proposal relates,
(b) such other persons as appear to them to be representative of interests substantially affected by the proposal, and
(c) such other persons as they consider appropriate.
(2) If, as a result of consultation under subsection (1), it appears to the Welsh Ministers appropriate to change the whole or part of the proposal, they must carry out such further consultation with respect to the changes as seems appropriate.
(1) If after consultation under section (Consultation by Welsh Ministers) the Welsh Ministers consider it appropriate to proceed with the making of an order under sections 12 to 14, the Welsh Ministers may lay before the National Assembly for Wales-
(a) a draft order, and
(b) an explanatory document.
(a) introduce and give reasons for the order ,
(b) explain, in the case of an order under section 12 or (Powers relating to other bodies), why the Welsh Ministers consider that-
(i) the order serves the purpose in (Purpose and conditions for orders made by Welsh Ministers)(1), and
(ii) the conditions in section (Purpose and conditions for orders made by Welsh Ministers)(2)(a) and (b) are satisfied, and
(c) contain a summary of representations received in the consultation.
(4) Subject as follows, if after the expiry of the 40-day period the draft order laid under subsection (1) is approved by a resolution of the National Assembly for Wales, the Welsh Ministers may make an order in the terms of the draft order.
(a) the National Assembly for Wales so resolves within the 30-day period, or
(b) a committee of the Assembly charged with reporting on the draft order so recommends within the 30-day period and the Assembly does not by resolution reject the recommendation within that period.
(a) any representations,
(b) any resolution of the National Assembly for Wales, and
(c) any recommendations of a committee of the Assembly charged with reporting on the draft order,
made during the 60-day period with regard to the draft order.
(a) a revised draft order, and
(b) a statement giving a summary of the changes proposed.
(11) An order may not be made by the Secretary of State under section 13(6) unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament."
(a) a charity, or
(b) a person not otherwise exercising public functions who is not a charity,
unless the charity or person has consented."
Lord Taylor of Holbeach: My Lords, it is a great pleasure to introduce this final group of amendments of what has been an excellent Report stage. In moving Amendment 91 I shall speak to the remaining amendments.
Noble Lords will know that considerable concern has been expressed in debate about the relationship between the Bill-and the proposals arising from it-and charities. I am pleased to be able to confirm that the amendments mean that the consent of charities to receive functions as a result of activities under the Bill will have to be sought under the legislation. The amendments are designed to effect that change and I hope that the House will be prepared to accept them.
(a) an internal drainage board, or
(b) a Regional Flood and Coastal Committee established under section 22(1)(c) of the Flood and Water Management Act 2010;"
(a) a function conferred under an Act or Measure of the National Assembly for Wales;
(b) a function which is exercisable in or as regards Wales and could be conferred by an Act of the Assembly;
(c) a function in relation to which a function (other than a function of being consulted) is exercisable by the Welsh Ministers, the First Minister or the Counsel General to the Welsh Assembly Government,
"( ) For the purposes of subsection (2) in relation to an order laid before the National Assembly for Wales, no account is to be taken of any time during which the Assembly is dissolved or is in recess for more than four days."
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, with the leave of the House, I shall now repeat a Statement that was made in another place this afternoon by my right honourable friend the Secretary of State for Health. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a Statement about NHS modernisation. At the outset I should say that modernisation of the NHS is necessary, it is in patients' interests and it is the right thing to do to secure the NHS for future generations.
The Health and Social Care Bill is one part of a broader vision of health and health services in this country, which are among the best in the world, where we have world-leading measurement of the results that we achieve for patients, where patients always experience 'no decision about me without me', where national standards and funding secure a high-quality, comprehensive service available to all, based on need, not ability to pay, and where the power to deliver is in the hands of local doctors, nurses, health professionals and local communities.
The House will know that the Bill completed its Committee Stage last Thursday. I was also able to announce last week that a further 43 GP-led commissioning consortia had successfully applied to be pathfinder commissioning groups. We now have a total of 220 groups representing 87 per cent of the country; that is 45 million patients whose GP surgeries are committed to showing how they can further improve services for their patients. In addition, 90 per cent of relevant local authorities have come forward to be early implementers of health and well-being boards, bringing democratic leadership to health, public health and social care at local level.
This progress is very encouraging. Our desire is to move forward with the support of doctors, nurses and others who work in the NHS and make a difference to the lives of so many, day in, day out, but we recognise that this speed of progress has brought with it some substantive concerns, expressed in various quarters. Some of those concerns are misplaced or based on misrepresentations, but we recognise that some are genuine. We want to continue to listen to, engage with and learn from experts, patients and front-line staff within the NHS and beyond and to respond accordingly.
I can therefore tell the House that we propose to take the opportunity of a natural break in the passage of the Bill to pause, listen to and engage with all those who want the NHS to succeed and subsequently to bring forward amendments to improve the plans further in the normal way. We have, of course, listened and improved the plans already. We strengthened the overview and scrutiny process of local authorities in response to
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Let me indicate some areas where I anticipate that we will be able to make improvements in order to build and sustain the support for the modernisation that we recognise to be crucial. Choice, competition and the involvement of the private sector should only ever be a means to improve services for patients, not ends in themselves. Some services, such as A&E or major trauma, clearly will never be based on competition and people will want to know that private companies cannot cherry pick NHS activity, undermining existing NHS providers. That competition must be fair. Under Labour, the private sector got a preferential deal and £250 million was paid for operations that never happened. We have to stop that. People want to know that the GP commissioning groups cannot have a conflict of interest, are transparent in their decisions and are accountable not only nationally but locally through the democratic input to health and well-being boards. We, too, want this to be the case. People want to know that the patient's voice through Healthwatch and in commissioning is genuinely influential. Doctors and nurses in the service have been clear that they want the changes to support truly integrated services, breaking down the institutional barriers that have held back modernisation in the past.
As I told the House on 16 March, we are committed to listening and we will take every opportunity to improve the Bill. The principles of the Bill are: that patients should always share in decisions about their care; that front-line staff should lead the design of local services; that patients should have access to whichever services offer the best quality; that all NHS trusts should gain the freedoms of foundation trust status; that we should take out day-to-day political interference through the establishment of a national NHS Commissioning Board and through strong independent regulation for safety, quality and effectiveness; that the public's and patients' voice must be strengthened; and that local government should be in the lead in public health strategy. These are the principles of a world-class NHS that command widespread professional and public backing. All these principles will be pursued through the Bill and our commitment to them as a coalition Government is undiminished. We support and are encouraged by all those across England who are leading these changes nationally and locally and we want them to know that they can be confident in taking this work forward. Our objective is to listen to them and to support them as we take the Bill through.
No change is not an option. With an ageing and increasing population, new technologies and rising costs, we have to adapt and improve. Innovation and clinical leadership will be key. We want to reverse a decade of declining productivity. We have to make productive care and preventive services the norm and we must continue to cut the costs of administration, of quangos and of bureaucracy.
The House knows my commitment to the NHS and my passion for it to succeed. To protect the NHS for
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This coalition Government are increasing NHS funding by £11.5 billion over this Parliament, but the service cannot afford to waste any money. We can sustain and build on these improvements only by modernising the service to be ever more efficient and effective with taxpayers' money. The Bill is a once-in-a-generation opportunity to set the NHS on a sustainable course, building on the commitment and skills of the people who work for it. Our purpose is simple-to provide the best healthcare service anywhere in the world. I commend this Statement to the House".
Baroness Thornton: My Lords, I start by thanking the noble Earl for repeating the Statement. I have to confess that this is a very puzzling moment. I do not recall a Statement in the middle of the proceedings of a Bill-a Bill that has only just finished in Standing Committee in the Commons. I would be grateful if the noble Earl could tell me whether there has ever been a Statement announcing a break, natural or otherwise, in the middle of the passage of a Bill. I wonder what might happen in this natural break, whatever that is. Perhaps the Minister can define this new parliamentary term. How long will it be? Why is it really necessary? What is likely to take place during that period? What exactly are the Government intending to do during that period? It seems to me that the things that the Government have said that they are going to do during that period should have happened anyway before the Bill was introduced and that they should have been ongoing. This should not be necessary.
However, I welcome the recognition in this Statement of the concerns that people have about the speed of change. I question the use of the word "continue" in the Statement in the context of listening and engaging. Frankly, if Mr Lansley had been listening and engaging, this Statement would probably not have been necessary. However, if it means that the Secretary of State really is going into listening mode, I welcome that and look forward to seeing it.
I welcome the fact that the Statement touches on the areas that are of concern to people. I also welcome the recognition in the Statement of the 10 years or so of investment by my Labour Government, which is why the NHS is as successful as it is today. However, I also note that the Statement, just like Andrew Lansley's
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We can build a picture of what has happened in the past week or so. First, the Prime Minister was wrong-footed by Ed Miliband on 16 March on whether the health service would now be subject to European Union competition law. It seems to me that he went away, found out about it and confirmed that that was the case. Will the Minister confirm that? There has been a stream of media stories reflecting serious concerns about the Health and Social Care Bill. Most recently, in the Daily Telegraph, Sarah Wollaston MP urged her party to drop plans for the radical reorganisation. On 1 April, Elizabeth Rigby, chief political correspondent of the Financial Times, reported concerns about the rapidity of change.
On 2 April, the Telegraph said that the Prime Minister was drawing up key changes to the Bill and planning amendments. This article is remarkably detailed about meetings at Downing Street with David Nicholson, the head of the NHS, and Mr Lansley. It says that Mr Lansley was not for compromising and that reforms had gone too far to be undone, which was the subject of a question that I asked in Oral Questions only today. I ask the noble Earl to confirm whether that is the case.
The Statement also reflects the fact that Mr Lansley is very firm about the Government's intentions for the NHS, but it is not consistent with the stories in the media about the activities at No. 10 Downing Street. Will the noble Earl tell us who is correct about these matters? I will draw a veil over what the noble Lords, Lord Owen and Lord Tebbit, have said about this matter in the past few days.
I am concerned about exactly what will happen during this natural break, which brings me to my final questions. My concern is that this break is being taken in order to strike a deal. I can just imagine a possible conversation between Nick Clegg and the Prime Minister. Nick Clegg says to the Prime Minister, "We want local accountability strengthened", which I think many of us here would agree with. The Prime Minister then says to Nick Clegg, "Okay, but your people in the Lords must deliver Part 3 of this Bill to establish the economic regulator, Monitor, without dilution of its powers". There is no doubt that that would be the prize for the Conservatives. It has been recognised by the noble Lords, Lord Owen and Lord Tebbit, and by the noble Baroness, Lady Williams. I fear that this is about keeping the coalition together rather than any
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I am further concerned that this is about playing politics with the NHS. Will the Minister reassure the House that that is not the case? This is too important to be used as a political football or to see decisions taken about the NHS simply to save David Cameron's face or Nick Clegg's face. What is required now is a rethink, a pause in the legislation and some root-and-branch changes.
Earl Howe: My Lords, I am grateful to the noble Baroness for her not entirely critical response, in that she acknowledged that we are listening to the concerns that have been expressed. I am almost tempted to remind the House of that dictum of Oscar Wilde or at least to modify it: if there is one thing worse than not listening, it is listening.
I believe that it is right for the Government to take advantage of a few weeks where Parliament is going into recess in order to take stock of some of the criticisms that we know are being voiced about the possible effects of the Bill; indeed, some arose in last Thursday's debate in your Lordships' House.
Let me answer the noble Baroness's points in turn. We are clear that the modernisation of the NHS is a necessity and not an option. There is significant evidence that our reforms across the country, as evidenced by the pathfinders mentioned in the Statement, are welcomed by general practitioners. We have been engaged in a continuous process of listening and engaging. The consultation process following the publication of the White Paper, our response to that and our clarification of the kind of competition that we wish to see in the health service are all examples of that approach.
We remain completely committed to the principles of the Bill that patients should be involved in decision-making about their care, that there should be a stronger patient voice and that there should be stronger clinical leadership in the way in which services are commissioned. We are completely committed-I hope that the House will hardly need me to say this-to the founding principle of the NHS: universal access free at the point of use, regardless of the ability to pay. Indeed, that is what the reforms are about. They are about protecting the NHS now so that it can survive into the future.
This pause-and that is all it is-is about taking advantage of the short break in the parliamentary process of the passage of the Bill as we go into the Easter Recess by listening to how these measures are being received on the ground and taking stock of the feedback that we get. It is about ensuring that those implementing the changes on the front line have everything that they need to help the NHS to improve for the better.
We have listened and we will continue to listen. The noble Baroness was a little doubtful that the Government had ever been in listening mode. I hope that she will recognise that, in response to the White Paper consultation last summer, we made a number of changes to our
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It is a pity to hear the noble Baroness criticise our plans for an economic regulator, as that is the way in which we see a fairer playing field emerging for providers to the NHS. We do not have the guarantee of a fair playing field at the moment. As the Statement pointed out, her Government-for the best of motives-engaged the independent sector in providing services to the NHS, but they did so on very preferential terms, which in my book were unfair to and disadvantaged the NHS. We want the system to be blind to the ownership of providers so that patient choice and the quality of services determine where care is provided for the individual patient and so that there is no bias, or as little bias as possible, in the system. You can achieve that only through independent regulation.
It is not true to say that we want a market free-for-all; that is far from the truth. Again, however, this listening exercise will enable us to take stock of opinions on that score. Moreover, if there are some unintended consequences emerging from the Bill as worded, we will certainly address them. We have no wish to get this wrong. As the noble Baroness said, this is too important a matter to get wrong. I hope that, despite her scepticism of and opposition to much of what the Government are seeking to do, she will seek to engage constructively in order to ensure that we take advantage of the opportunity that we now have to drive further efficiencies and quality in the way in which care is commissioned in the NHS. We want to put the patient truly at the centre of healthcare and thereby create a more cost-effective service for the taxpayer. I believe that we will come out of this period of reflection stronger, because no doubt we will have some clear messages that we will need to reflect and act on.
Lord Alderdice: My Lords, I am grateful to my noble friend for repeating the Statement made in another place and I will not rehearse our support on these Benches for reform of the health service. Some of those reasons were wonderfully spelt out by the noble Lord, Lord Turnberg, in his debate on the NHS last week. However, it is no secret that Members on these Benches do not regard the Bill as it presently stands as perfect. Despite the fact that it did not receive a great deal of attention in the speculative narrative of the noble Baroness, Lady Thornton, it is known that my colleagues want to see changes and indeed have welcomed some of the changes that we have already seen.
I wonder if I may press my noble friend on two issues. The first was also raised by the noble Baroness-the timescale. My noble friend indicated that he sees the timescale as using the Recess, but the Health Secretary wishes to engage and consult with a substantial number of people. Given that, when the Bill comes back after Report in the other place with amendments, which we would welcome, can we expect it to come to this House before the Summer Recess or will the natural break take us a little further? That may be necessary, and some clarity would be helpful, if my noble friend can provide it.
I and my colleagues welcome this, but can he spell it out a little further? At present, the locally elected democratic input to health and well-being boards is extremely modest, so we would be keen to see an indication that something rather more substantial might be possible.
Earl Howe: I am grateful to my noble friend. In answer to his first question, it is likely that the period of listening and engagement will extend through the Easter Recess and beyond. The precise duration of the intermission has not been fixed yet because much will depend on the volume of feedback that we receive. While I have not spoken to the usual channels about this, I am still working on the premise that your Lordships' House will receive the Bill prior to the Summer Recess. I believe that, if the House agrees, we can thereby reach the Bill's conclusion within a reasonable space of time. That will enable us to adhere to the current timetable for the implementation of our proposals. But that statement does come with what I might call a health warning because we are clear that we want to listen to the opinions of everybody who counts in this, and it could be that the period of reflection may extend into the late spring. But no doubt I will be able to enlighten him further in due course.
My noble friend mentioned the democratic input at health and well-being board level. This is one of the issues that we will want to receive opinions about because I know there has been disquiet on this front. He knows that his party was instrumental in building into our plans the democratic element of health and well-being boards and the fact that they should be situated at local authority level. That was a very positive contribution made by the Liberal Democrat Party which has, by and large, been widely accepted. If there are ways we can bolster that democratic accountability without cutting through the core principles that we have articulated for decision-making in the health service, then we are willing to look at them.
Lord Touhig: My Lords, the Minister said that the NHS was in a healthy financial position and that the Government intend to increase NHS spending by £11.5 billion over the life of this Parliament. Yet, in the last financial year, the NHS had an underspend of £5.5 billion and the forecast this year is a further underspend of another billion. The Chancellor has said that he intends not to hand this money over to the
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Earl Howe: My Lords, the noble Lord needs to bear in mind that the forecast surplus for 2010-11 represents a very small proportion of the department's budget. It is greatly to the credit of the health service and the department that they have managed to come in on the right side of the line and by a margin that, in the scheme of things, is not significant. I say that without being at all blasé about the figure of £1.4 billion. I suggest to the noble Lord that that represents good financial management. Yes, the money that represents the surplus cannot be carried forward into the subsequent year but that is not the same thing as saying that providers, for example foundation trusts, may not use their carry-forward balances. That is still possible at provider level. I hope, on reflection, that the noble Lord will not think too badly of the way the service has been run in the past few months.
Lord Blackwell: My Lords, I am sure the Minister must be correct that, in a reform of this scale and magnitude, it is right to take as much advantage as possible to listen to those who can help in the implementation and timing of the reforms. I hope he can also assure the House that the Government will not be diverted from the essential purpose of these reforms by those who have never accepted that public services do not need to be run by a central organisation in a public monopoly. As my noble friend will be well aware, we were already some way down this road in 1997 with GP fundholder practices. We wasted five years when the then Government reversed those changes and went back to a centralised organisation before realising that that would not work and had to restart the process of introducing delegation and alternative providers into the NHS.
We are now 10 years further on from that and it is important that the changes are not lost in the voices that will always oppose changes that are necessary to reform the way that the NHS works. I hope that, while listening to those voices, the Minister can assure us that these essential reforms will be carried through and that the period of uncertainty for the NHS will not be any longer than it needs to be before we can get to the kind of reformed NHS that we all want to see.
Earl Howe: My Lords, I am grateful to my noble friend and can give him those assurances. He is right: we have somehow got ourselves into the position of having a National Health Service that is, in essence, managerially and administratively led instead of being clinically led. That has happened by a process of accretion and slow and steady development. We need to get back to one of the principles that the incoming Labour Government articulated in 1997 when they introduced primary care groups. That was an attempt by them to do exactly what we are trying to do: to have clinically led commissioning in the health service. Unfortunately, to my mind, primary care groups morphed into primary care trusts and thereby became administrative units which became more and more divorced from clinical decision-making.
I can reassure my noble friend that we do not want to dilute the principle of clinically led commissioning. We believe that it is right and that we can build on the experience of the past; not just primary care groups, but also the good parts of fundholding, which had some good elements, and practice-based commissioning groups, which the previous Government introduced. This is an important opportunity, as I said earlier, to capitalise on the NHS as it now is and to shed some of the unhelpful elements that get in the way of driving quality and patient care.
Lord Patel: My Lords, the Statement suggests that the Government are satisfied with the performance of the health service, both fiscally and in the quality of care it provides. It is therefore surprising that the Statement also says that we need to improve productivity and quality. How does an economic regulator promote competition based on quality?
Earl Howe: The economic regulator will do two things. It will fix prices for the purposes of the tariff and it will preside over the marketplace-such as it exists-in healthcare so that anti-competitive conduct will be prohibited. It will bear down upon conflicts of interest and anti-competitive practices of all kinds and, in conjunction with the NHS commissioning board, it will ensure that the pricing system in the NHS incentivises quality. There are, as the noble Lord knows, a number of levers that we can use to do that through the tariff.
Lord Warner: Is the Minister aware that many people are concerned about whether the Government will listen excessively to those who make the greatest noise among some of the vested interests that the Bill tries to tackle? Is he aware that many people wish to look at the Bill forensically to make sure that changes in commissioning lead to more competent commissioners, something we have not achieved in the past: that we start to dismantle some of the barriers to entry in order to create more diverse providers; and that we look very seriously at the pricing system to make sure that it does not just put money into the pockets of acute hospitals, but brings more care closer to home?
Earl Howe: I am grateful to the noble Lord, Lord Warner, whose book, I may say-without indicating that I am in receipt of a commission for saying so-deserves reading by every thinking healthcare commentator. He is right, of course; we need to ensure that the vision that I think is shared by many in this House, regardless of party, can be successfully implemented. I recognise the implication of his question, which is that this House is eminently capable of examining the Bill forensically. When it comes to us I have no doubt that we will do that however long it takes, and I look forward to that. However, it would be a rather cloth-eared Government who were insensitive to the voices that have been heard in recent days outside this Chamber and another place. We need to dispel many of the misunderstandings that exist as well as address some of the genuine misgivings that people have. It is right that, without losing too much momentum in the process, we take these few weeks to do just that.
Lord Ribeiro: My Lords, I thank my noble friend for repeating the Statement. The health reforms are necessary because they address the complexity and cost of medical care, which are growing daily as our population also grows. Our elderly population is growing simply because of the improvements in healthcare over the past few years. Here I acknowledge the unprecedented funding provided by the previous Government to stimulate the health service in its development. This Government have agreed to enhance that funding.
The noble Lord, Lord Darzi, signalled a change from process management to service delivery based on quality. This Government have accepted the challenge to pursue a quality agenda, knowing that, although quality care is costly, at the end of the day-particularly in my speciality, surgery-there is no question that good quality care, particularly the use of minimally invasive surgery, leads to early discharges of patients and better outcomes. I hope that this principle of quality is something that the Government will pursue. Is it my noble friend's intention that the emphasis in health reforms should remain on quality outcomes being the bedrock of the reforms?
Earl Howe: I can reassure my noble friend Lord Ribeiro instantly on that. He will know, I am sure, that the acronym that was coined by the previous Government, QIPP, which stands for "quality, innovation, prevention and productivity", is symbolic of a whole series of workstreams not just in the Department of Health but throughout the health service to ensure that quality is maintained and enhanced in the service. Unless we deliver higher quality to patients, the service will not be sustainable. Some people say that higher quality care costs more money but, as my noble friend will know from his own craft speciality, the better the care that you deliver the less costly it often is because care that is delivered in a substandard way often results in unintended consequences, such as patients returning to hospital with complications. We need to drive safe care and right care in the system.
Many of the levers that we have to improve quality are not in the Health and Social Care Bill at all-for example, the need to roll out the information agenda, without which there can be little transparency of quality. Those activities are being pursued with energy and drive in my department.
Lord Beecham: My Lords, months after the Bill was launched upon an unsuspecting world-including, apparently, the Prime Minister-it seems to have been admitted to the fracture clinic if not to the intensive care ward. A number of questions arise from the Statement itself. For example, the Statement says:
Is not the implication that other services will be based on competition? Will the Minister comment on the predominant role of Monitor as a promoter of competition, as opposed to being simply an economic regulator?
On the GP commissioning groups or consortia, will the Government look again at the composition of those groups as well as their degree of local accountability? Will he also look at the powers of the health and well-being boards? Does he have any views about those in addition to the question of their composition?
As for the NHS being in a healthy financial position, does the Minister have any comment on tonight's story in the Evening Standard about people who were made redundant last Friday having to be re-engaged by PCTs and other organisations, at considerable cost to the NHS?
Earl Howe: My Lords, those who have been re-engaged by the health service, having taken redundancy or early retirement, will forfeit their redundancy pay because there is a clawback arrangement in force, as I told the House the other day.
The noble Lord asked a number of questions. I want to be very brief because I am aware that the noble Baroness, Lady Masham, wants to get in before the time is up. Monitor was described as a promoter of competition. Expressed in stark terms like that, it sounds as though its job will be to go around drumming up competition where there is none already. That is not a correct reading of its functions; it is there to bear down on anti-competitive conduct and to ensure fair competition. The composition of consortia is a concern that we have heard about, and we will listen to that concern. It is now up to the pathfinder consortium to think about this kind of question. The early implementers of health and well-being boards are starting to think about those powers and how they can be used and we will listen to whatever they have to tell us.
Baroness Masham of Ilton: My Lords, is the Minister aware that patients very often cannot get an appointment with the GP of their choice so there is no continuity? If GPs have to undertake administration on the consortia, will this not get worse? Would it not be better if the consortia consisted of a mixture of GPs, specialists, nurses, administrators and patients? Working together would surely be better than working in conflict.
Earl Howe: The noble Baroness is absolutely right about working together, and our vision for good, clinically led commissioning is that all clinicians, not just GPs but everyone with a stake in the patient pathway, should join together and determine what good care looks like. However, she is mistaken in her first assumption. We are not asking thousands of GPs to become administrators. It will take only a very few to took after the commissioning of care in consortia, and the administration will be taken care of by management employed by the consortia.
The Minister of State, Home Office (Baroness Neville-Jones): My Lords, the purpose of this draft remedial order is to abolish the certificate of approval scheme to prevent sham marriages. A certificate gives migrants written permission from the Home Office to marry. I am grateful to the Joint Committee on Human Rights for its support in this matter.
In its first report on the order published on 16 November 2010 the JCHR agreed that the scheme should be abolished. It also agreed with the Government's approach in using this order to achieve abolition. The Government laid a revised order in December 2010 making minor technical changes recommended by the JCHR. In its second report published on 14 March the JCHR recommended that Parliament now approve this order.
The Government want to bring this order into force subject to your Lordships' agreement. We are doing so for two reasons. First, the domestic courts have declared that the scheme is incompatible with the European Convention on Human Rights. Abolishing the scheme will remove this incompatibility. Secondly, changes made following rulings from the domestic courts have weakened the scheme and the Government do not consider it any longer to be an effective method of dealing with sham marriages.
The certificate of approval scheme was introduced in 2005 by our predecessors to protect the immigration system and marriage laws from abuse, in particular from those entering into sham marriages. The scheme did not and still does not apply to Anglican marriages taking place in England and Wales and this different treatment for non-Anglicans is at the heart of the judgments against the scheme. The House of Lords ruled the scheme unlawful in the case of Baiai by making a declaration of incompatibility relating to the discrimination between civil and Anglican marriages.
The scheme has been modified in several ways to comply with court rulings. This included allowing people who had been excluded from the original scheme to apply for permission to marry-for example, illegal immigrants-and we also suspended the application fee. However, the current scheme is now frankly a shadow of its former self. It is ineffective as a means of preventing sham marriages and we believe that there is no merit in continuing with it. The Government therefore intend to end the scheme, subject to approval, on 9 May. Your Lordships may ask what the effect will be. Indeed, it is hard to know. There is a risk that reports
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Reports of sham marriages are already rising. In 2009, there were 561 reports of suspected sham marriages; in 2010, there were 934 such reports. We do not know the extent to which this constitutes a real rise or simply better reporting. Either way, there is a problem here to tackle, which must be of concern to everyone in this House. Therefore, when the scheme is abolished, the UK Border Agency will use the powers it still has to tackle sham marriage abuse. It is looking at ways in which it can use them more effectively to stop what is obviously covert immigration. It will obtain sham marriage information from the register office.
The registrars will play a very important role in the future. It is already a key role and it will become even more important. Civil registrars will continue to exercise their duty to report any suspicious marriage to the UK Border Agency, under Section 24 of the Immigration and Asylum Act 1999. The existing rise in the number of reports reflects the work that is already being undertaken by registrars to focus on tackling this abuse. This work will be intensified. It will also ensure that migrants will still be permitted only to give notice to marry at one of a number of designated register offices throughout the UK. This will mean that the UKBA can focus resources on a limited number of locations.
The UK Border Agency will also act on information so that immigration officers will be able to disrupt sham marriages scheduled to take place in churches. The UKBA is building on existing relations with the Anglican Church so that suspicions about sham marriages are reported by clergymen and clergywomen. The UK Border Agency has developed training for members of the clergy to help them identify potentially suspicious marriages. Immigration officers and police will continue to work together to arrest facilitators, brides, grooms, witnesses and guests-anybody who is involved-at ceremonies across the country that are, in fact, sham.
The aim will be to destroy a criminal business if one is taking place. We have already had some notable successes. In the north-west, for instance, seven Czech nationals were recently sentenced to between 16 months and five years for their part in facilitating sham marriages, some of which were also bigamous. Two of the group also received custodial sentences. An operation in the Midlands has so far seen 13 people convicted, with sentences totalling 20 years. Last month the agency mounted its largest sham marriage operation to date, which saw officers swoop on geographically spread addresses in London, Birmingham, Nottingham, Devon and Kent, while a simultaneous operation took place with the Dutch police in Rotterdam and Tilbury. There have also been a number of successful operations where churches have supplied information when they believed a marriage might be suspect. This included the conviction of an Anglican vicar, Alex Brown, and his two co-conspirators, who were recently found guilty of facilitating more than 300 sham marriages.
The UK Border Agency will also prevent a person who has entered into a sham marriage acquiring any immigration rights. The legal position is clear. Those who enter into sham marriages are not able thereby to rely on that marriage to obtain leave to remain or to acquire the right to reside in the UK as the spouse of an EEA national. Third-country nationals wishing to enter the UK on the basis of a marriage to a British citizen or person settled here are and will remain subject to our Immigration Rules. If we believe a marriage to be a sham, an application for leave to remain under the Immigration Rules will be refused. That still has to happen. Those who are discovered taking part in, or facilitating, sham marriages will be prosecuted.
We are closely scrutinising the marriage route to the right to remain and looking at measures to tighten it. We have already announced that we intend to consult on extending the spouses' probationary period before settlement beyond the current two years. An additional period would allow a longer time to test the genuineness of the relationship. As I said, the Government will do their best to combat the abuse of immigration through sham marriage. I commend the order to the House.
Lord Avebury: My Lords, of course we welcome this order, which corrects a serious error of judgment by the previous Government. We also welcome the Minister's careful explanation of its purpose and consequences. She said that there was evidence of an increase in the number of sham marriages in the figures for 2009 to 2010. If I have the correct figures, the number of sham marriages increased from 561 in the first of those years to 934 in the second. However, is it not a fact that people do not acquire any additional rights to remain as a result of a marriage when they have entered the country for some other purpose? It would be interesting to find out what the subsequent immigration experience of the people was whose marriages were reported as possibly being sham. I am sure that the UK Border Agency carefully followed up all the reports that the Minister has mentioned. For future reference it would be useful to know how many of the people were subsequently prevented from remaining in the country because it was established that the marriages were not only suspected of being sham but were actually false.
The Minister also spoke about the experience of the police in detecting particular cases. She mentioned the Czechs who were convicted and sentenced to between 16 months and five years for facilitating sham marriages, and said that in some cases those marriages were proved to have been bigamous. Obviously, an offence was committed by those people quite apart from the immigration offence and they would have quite properly been convicted for that reason.
When the Labour Government introduced certificates of approval for marriages between people, either or both of whom were subject to immigration control, there were immediate warnings from those with experience of immigration law and the European Convention on Human Rights that the scheme was discriminatory. The Immigration Law Practitioners' Association briefing to your Lordships for the Third Reading of the Asylum
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The incompatibility with the convention was identified by the domestic courts as early as 2006, so the remedial order that we are now considering, which is intended to be "fast track" corrective action following a declaration of incompatibility, has taken five years to mature. Not surprisingly, the Joint Committee on Human Rights regrets the substantial delay. Having set out their intention to use a non-urgent remedial order under Section 10 of the Human Rights Act 1998, this Government acted as quickly as possible to abolish the certificate of approval scheme in response to the House of Lords judgment in the case of Baiai, which had been delivered on 30 July 1998. Will my noble friend say whether it would have made any difference if the matter had been treated as urgent? Does she think that there is any way of speeding up the process generally in any future cases, of which, fortunately, there have been very few so far?
The lesson to be learnt from this episode, however, is that it is dangerous to rush solutions to immigration problems through Parliament towards the end of the proceedings on a Bill without any consultation and in the face of reasoned criticism. The clauses embodying the certificate of approval scheme were introduced on recommitment, a wholly unsuitable mechanism for radical proposals that affect the very institution of marriage, as we said at the time. We were not satisfied that the scheme was effective, proportionate and compatible with the ECHR. The failure of the previous Labour Government to listen to the warnings by the Liberal Democrats, the JCHR and the Immigration Law Practitioners' Association has cost the taxpayer perhaps hundreds of thousands of pounds in litigation and compensation, and there may be further claims still to come. In particular, there is one case before the European Court of Human Rights, and the JCHR proposed in its 31st report of Session 2007-08 that where there are multiple claims for compensation, the Government should adopt an approach that minimises the burden on the court and expense for the taxpayer. The Government do not consider that there is a significant risk of multiple repeat cases because potential litigants have had plenty of time to challenge the certificate of approval scheme since it was ruled to be unlawful.
There was a scheme for reimbursement of the certificate of approval fee of £295, or £590 where both partners to a marriage were subject to immigration control, but only where the payment caused the applicants real financial hardship at the time of payment. Of the 1,213 requests for repayment of the fee, only 170 had been granted and 49 remained outstanding at the end of January this year. In his letter to the JCHR of 21 December 2010, the Minister said that ILPA was wrong to say that the test for repayment was difficult to satisfy, because anyone able to meet the financial hardship test would qualify. However, the point that ILPA was making was that there was a four-and-a-half
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Lord Rosser: My Lords, this order removes the requirement, known as the certificate of approval scheme, for those who are subject to immigration control to obtain the Secretary of State's written permission to marry in the UK. The Minister has set out the Government's reasons for terminating the scheme on 9 May this year, namely that our courts have ruled that the scheme is incompatible with the European Convention on Human Rights, and the changes that were made following those rulings have significantly weakened the effectiveness of the scheme.
The certificate of approval scheme was introduced in 2005 and clearly had a not inconsiderable effect on addressing the issue of sham marriages. During the life of the scheme there were 120,000 applications for a certificate of approval, of which 5,463 were refused. As has been said, under Section 24 of the Immigration and Asylum Act 1999, civil registrars have a duty to report any suspicious marriage to the UK Border Agency. In 2004 there were 3,578 reports of suspected sham marriages. Following the introduction of the certificate of approval scheme in 2005, reports fell to 452 in 2005, or one-eighth of the total in the previous year, and stayed below 400 cases each year until 2009, when 561 reports were made.
In the light of the court judgments, we support the order, but we need to know a little more than the Minister told us about the measures that the Government are now taking to address the issue of sham marriages, and why they believe that those measures will be successful. The Government have said that the increase in 2009 and the further increase in 2010 to 934 reports of suspicious marriages is an indication of the work that they have undertaken with registrars to focus on this issue. In other words, if the figure increases, we are having more success. However, the figure reduced dramatically when the certificate of approval scheme came in during 2005. That would suggest that a reduction in the number of reports, rather than an increase, indicates success. It could well be, in the light of the current Supreme Court ruling that has reduced the effectiveness of the current scheme, that those involved in sham marriages have started to become somewhat bolder again, and that the increase in the number of reports in the past two years is because of a significantly larger increase in the number of sham marriages.
It would be helpful if the Minister could say why she believes that the possible scenario that I have painted to explain the increase in the number of Section 24 reports is not likely to be the case, and that the scenario that the Government have painted to explain the increase in the number of Section 24 reports is
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That could be the case; but if it is, what is the hard evidence that shows that the recent work by the UK Border Agency is actually having an impact on reducing the number of sham marriages, as opposed to simply scratching the surface of an increasing problem?
The Minister for Immigration also referred at the end of last month to more than 130 operations having been carried out over the past 10 months, leading to more than 150 arrests. There is, of course, a big difference between being arrested and being charged, and between being charged and being convicted. Of the 150 arrests to which the Minister for Immigration referred, how many led to charges and how many then led to convictions in relation to sham marriages? Are we to assume from the comments of the Minister for Immigration that the number of people being charged and convicted for involvement in one way or another with sham marriages has increased in the past couple of years as the number of reports of suspicious marriages has started to increase again?
If the number of sham marriages being reported is increasing, how many more years can there be, with figures increasing year on year, before the noble Baroness is no longer convinced that more reports are a reflection of the work done by the UK Border Agency and instead that the increase in reports could be because the measures the Government are pursuing are not as effective as the certificate of approval scheme, and that the problem of sham marriages is getting worse?
I appreciate that targets have gone out of fashion as far as this Government are concerned, but how do they intend to measure the success or otherwise of the measures they are taking to combat sham marriages that were set out in the letter dated 21 December 2010 from the Minister for Immigration to the chair of the Joint Committee on Human Rights? I should also be grateful if the noble Baroness could say something about resources available to combat sham marriages, both human and financial-particularly since sham marriages are a route for illegal immigration-and that dealing with sham marriages is a declared priority for the Government. What will be the number of full-time equivalent staff at the UK Border Agency at the end of this year dealing with sham marriages, compared to the number of full-time equivalent staff in the agency doing so at the end of last year? Is the number projected to increase or decrease in future years? Is the Minister satisfied that sufficient resources are being devoted to this issue to prevent an increase in the number of sham marriages, and is there a plan B if there is compelling evidence that the number is increasing?
Lord Martin of Springburn: My Lords, I take an interest in these matters because I believe that when I represented the constituency of Glasgow North East there were more asylum seekers in my constituency than in any other in Scotland. That must have been the case, because when I held surgeries on a Friday night after I had finished Speaker's work and come to Glasgow, I used to finish at 8 pm, but when the asylum seekers came in large numbers, it was more like 11 pm.
If I understood the Minister correctly, she said that approved register offices would accommodate immigration officers. It should be remembered that the marriage of a young local girl to someone from abroad is in most cases a time of celebration. Often, friends and relatives want to come along to witness the marriage. If the dedicated register office for the young lady and her new husband to get married in is a distance away from where that person lives, it will create a social difficulty and mean that relatives cannot come along to the marriage.
There is something else that I would like to know. I keep hearing the term "sham marriages". I understand what is meant by it, but I would rather use the term "suspect marriages". Has the Minister given any thought to arranged marriages? I have experience of situations where a young girl who is a member of a family that comes from the Indian subcontinent has left her native city of Glasgow and gone back to marry a young man. In the eyes and in the tradition of that family, it is a genuine marriage: the family would not call it a sham marriage. However, the groom may have ideas of getting into the country as a married man and, at a later stage, will perhaps apply to join his bride. They have not been married in this country but abroad. Has the Minister given any thought to arranged marriages where these circumstances often arise?
I well understand that someone who is an asylum seeker is subject to immigration control. However, my experience as a Member of Parliament was that often the asylum seeker was refused the right to remain. Sometimes he exhausted the appeal process but stayed in the country for longer than the period when he was applying for asylum. In other words, he stayed on as an illegal immigrant for longer than he had enjoyed the legal status of being an asylum seeker, in the hope that the community would support him or that he might find a lawyer who would find a new way of allowing him to remain in the country. What about the person who has been refused, having exhausted all legal applications and tribunals to stay, but decides to remain? It has been my experience that, in some cases, those who have remained after exhausting all the procedures have sometimes stayed three or four years in the country. Is that person subject to immigration control or is there another category for them? Sometimes before a couple get married they enter into a partnership which may produce children before the actual marriage takes place. What consideration is given to the children of that union and the opportunity for a father or a mother to visit their children in this country?
Baroness Neville-Jones: My Lords, a number of points have been raised. I will deal first with those raised by the noble Lord, Lord Avebury. He is right to say that no additional rights are acquired by this conduct. On the question of the measures that we might be putting in place to deal with the absence of the certificate, I will say two things. The noble Lord asked whether we could have done this more speedily. We laid the orders within three months. The other thing is that it is wise, in order to limit the extent of the abuse and the absence of having the certificate scheme, to intensify and put in place really effective measures. One of the things we have been doing during the time between laying the order and being able to bring it to the House is ensuring that the measures that we have in place are as effective as we can make them. So the time has not been wasted. We have been as fair as we can be about the question of payments and when there has been a question of hardship the money has been refunded. The reason why there are relatively few applications, as the noble Lord said, is that people have had good warning. We do not believe that there is going to be a great splurge of demands following the repeal of this order.
The noble Lord, Lord Rosser, misquoted me and then asked me to approve a whole lot of assertions that I had not made. I did not say that I had a strong belief or confidence that our remaining powers would be effective. It is most unfortunate that the previous Government put in place, as the noble Lord, Lord Avebury, rightly said, a scheme which they were warned would be discriminatory and which has now been struck down. It would have been better if they had put in place one that was capable of continuous implementation. What I said was that it was hard to know what the effect of the abolition of the certificate would be. I also commented that we did not know the extent to which the rise in numbers was attributable to better reporting or to increases.
Lord Rosser: The quote I gave was actually from Mr Damian Green, the Minister for Immigration, who is on record in Hansard as saying that the increase in the reports of suspected sham marriages in 2010,
Baroness Neville-Jones: My honourable friend in another place was pointing to the efforts that the Government are making to compensate for the absence of a scheme that, had it not been discriminatory, might still exist. Great efforts are being made to ensure that the hinge position now occupied by registrars will be effective. That is why the links between UKBA and registrars' offices are being increased and intensified, why guidance is being issued to the clergy and why registrars' offices are being given training to ensure that they can recognise an application for a suspicious marriage if it comes their way.
We have to intensify all those methods. It is difficult to know at this stage whether that will be effective. The Government will do our very best, because it is important and in the public interest that this should not be a route for covert immigration, which it has been becoming-people have been engaged in what we can only call organised crime to get people into this country via that route. We have conducted two publicity campaigns, as my honourable friend in another place mentioned, designed to alert both those who enforce and those who may try to abuse the system that measures are being taken against that.
I say to the noble Lord, Lord Martin, that in Scotland all register offices are designated, so the issue of having to travel does not arise. Only the application has to be made through approved offices. For people who marry abroad, other immigration rules still apply, including an English-language test, so not all the barriers against abuse fall away as a result of the absence of the certificate scheme. The answer to the noble Lord's question-is a failed asylum-seeker subject to continuing immigration control?-is definitely yes. Anyone without status that enables them to stay will certainly be subject to immigration controls.
No other route will arise from the absence of the certificate scheme that will make it easier for people to abuse the system. We are doing our very best to ensure that the absence of the certificate scheme does not render either the sham marriage route-the suspect marriage route-or any other route to abusing the immigration system any easier to operate. As a general proposition, I think that the House would agree that there is increasing effort both to publicise the fact that the Government intend to act against abuse of the system and to put in place effective measures to ensure that, having said that we will do that, that is the outcome.
Although there is some anxiety in the House, which I share, about our ability to control the situation, we will be monitoring it carefully and making our best efforts to ensure that that route is not used. I hope that the House will feel it necessary to abolish the scheme and, on the basis of the Government putting in place the best methods that we can to control this, approve the order.
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