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House of Lords

Wednesday, 12 December 2012.

3 pm

Prayers—read by the Lord Bishop of Bristol.

Driving: Blood Alcohol Limit


3.07 pm

Asked by Lord Brooke of Alverthorpe

To ask Her Majesty’s Government whether they will consider introducing a 50 milligram blood alcohol limit for drivers aged under 21.

Earl Attlee: My Lords, the Government have no plans to introduce a lower blood alcohol limit. The North review did not support a lower limit for drivers under 21 and the Government endorsed this. The Department for Transport is considering several options to ensure that newly qualified drivers drive safely.

Lord Brooke of Alverthorpe: As the Minister will be aware, I have shifted my position considerably in the spirit of Christmas. I have moved away from a demand for zero tolerance to what seems to be a reasonable compromise to move forward. I am sorry that in his first response he said that the Government will not move, but at least they are prepared to consider some movement for younger drivers. All the evidence indicates that this is required. Will the Minister confirm to the House that the number of drink-driving deaths went up last year for the first time in a number of years, and that we need to take action in the near future?

Earl Attlee: My Lords, I confirm that there was some unwelcome news on the number of casualties. However, if one looks at the graph, there continues to be a welcome downward trajectory. None the less, across the House, we all need to work hard to continue that downward trajectory.

Baroness Sherlock:My Lords, will the Minister tell the House how many fatalities per year the department believe to have any connection with drink-driving among people under 21?

Earl Attlee: My Lords, I am not sure regarding those under 21. The key figure is 280 drink-related fatalities per year.

Baroness Finlay of Llandaff: My Lords, will the Minister explain what the measures are to improve the safety of young drivers which he alluded to in his first response?

Earl Attlee: My Lords, we are considering all possible options at the moment to continue the downward trend.

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Lord Mackenzie of Framwellgate: Will the Minister comment on the increasing and worrying trend of people driving under the influence of drugs? Will he tell the House when it is likely that a device will be approved for roadside testing in this regard?

Earl Attlee: My Lords, during the passage of the Crime and Courts Bill this afternoon we will be taking the drug-driving provisions through. There are two pieces of equipment to be approved: the station-based drug testing equipment, which is on track to be approved by the Home Office shortly, and the roadside drug testing equipment, which is a little more difficult; we need to wait for the outcome of the expert panel which is looking at the appropriate levels before we can set its specification.

Lord Swinfen: My Lords, how long does it take for the blood alcohol level to return to zero from 80 milligrams when the alcohol disperses naturally?

Earl Attlee: My Lords, I do not know, but the key point is that there is no safe limit of alcohol in the blood when driving a vehicle. Therefore, we advise that the best option is not to drink at all.

Lord Harris of Haringey: My Lords, I note that the noble Earl told us that there was a downward trajectory. Will he give us the figures for the number of fatalities in the past year and for the year before that to demonstrate that? What stance are the Government taking on the BMA’s recommendations on this matter?

Earl Attlee: My Lords, the casualty figures were distorted slightly by the number of casualties in 2010, which were slightly lower; we believe that that was due to the bad weather. The key point is that the figures for 2011 were still better than those for 2009.

Lord Roberts of Llandudno: My Lords, will the Minister tell us how the United Kingdom’s blood alcohol limit compares with those of the rest of Europe?

Earl Attlee: My Lords, many European countries have a 50 milligram blood alcohol limit. However, they also have lower penalties at that level. Our policy is to have an 80 milligram limit but very severe penalties if you exceed the limit. This seems to have the right effect because our safety record is better than that on the continent.

Viscount Simon: My Lords, if the noble Earl is saying that 80 milligrams is the correct level for us, what about Scotland and Wales? Presumably they will decrease their level to 50 milligrams.

Earl Attlee: My Lords, the noble Viscount is quite right; Scotland has the power to set a lower limit. However, it cannot change the penalties. If it does change its limit, it will be very interesting to see what the effect will be on casualties.

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Baroness Miller of Chilthorne Domer: My Lords, in France it is now compulsory by law to carry a breathalyser kit in one’s car. Is the UK considering anything like that?

Earl Attlee: My Lords, absolutely not. The difficulty with that idea is that it would enable drivers to drink more while believing that they were below the limit. Our policy is that there is no safe level of alcohol in the blood when driving. Therefore, we do not support the compulsory carrying of breathalysers by drivers.

Baroness Hayman: My Lords, when the Minister gave the figures for the number of fatalities involving drink, did all of those incidents involve blood alcohol levels above the current limit? My recollection is that one problem with the issue was that no statistics were kept for accidents involving drinkers who were below the 80 milligram limit but above the 50 milligram limit. Is that information now available?

Earl Attlee: My Lords, it may well be available but I am not aware of it. However, my point is that there is no safe blood alcohol level when one is driving a vehicle.

Lord Cormack: My Lords, my noble friend referred to options and the noble Baroness, Lady Finlay, asked him if he could specify some of the options. Can he give us at least two of them?

Earl Attlee: My Lords, one option—and it is only an option—would be to deal with the problem of tragic accidents where several youngsters are killed in one vehicle. These are very distressing accidents and we need to consider whether we should allow a young driver to carry several youngsters. However, there is a contrary argument, which noble Lords opposite articulated when they were Ministers, that that could have an economic effect. It could mean that the system of one sober driver might not work. So we need to consider carefully what the options are to make sure that there are no unintended consequences.

Baroness Farrington of Ribbleton: My Lords, will the Minister tell your Lordships’ House which drugs will be detected if the detection equipment is found to be reliable?

Earl Attlee: My Lords, we are shortly going to be publishing the review of the expert panel which will tell us which drugs and what levels for each drug will be detected, based on scientific evidence, and the risk associated with them.

Lobbyists: Register


3.15 pm

Asked by Baroness Hayter of Kentish Town

To ask Her Majesty’s Government when they will bring forward proposals for a register of lobbyists.

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Lord Wallace of Saltaire: The consultation document Introducing a Statutory Register of Lobbyists was published earlier this year to gather evidence from experts in the field and members of the public. It asked a number of specific questions, the multiple answers to which are informing policy developments in this area.

Baroness Hayter of Kentish Town: Well, my Lords, it does not sound like much action has been taken. Given that the coalition promised to regulate lobbying through a statutory register—in case the noble Lord needs reminding—can he tell us whether it is going to move on this or is it going to wait for the next big scandal before it does so?

Lord Wallace of Saltaire: My Lords, we are certainly intending to move on this but as the noble Baroness will appreciate if she has looked through the replies to the consultation document and the companion report of the Political and Constitutional Reform Committee in the other place, there is a quite remarkable dissensus among respondents. The Government’s summary of replies to the consultation document remarks at one point, in effect, that a lot of those consulted regard themselves as a legitimate part of the political process but regard everyone else as lobbyists. That is part of the problem. The paid lobbyists are a small part of those with whom we are talking, and they wish charities, think tanks, trade unionists and others also to be included on any register of lobbyists.

Lord Tyler: My Lords, does my noble friend agree that the overriding objective must surely be greater transparency? In that regard, while we must obviously avoid excessive complexity because the information has to be accessible and digestible, does he agree that all we really need to know is who is lobbying who about what? The register only goes so far in that respect.

Lord Wallace of Saltaire: My Lords, the Government have moved some way towards greater transparency in terms of who members of the Government meet. I am amazed by the detail in which I have to account quarterly for who I have met over the previous three months, so at one end we are already being more transparent. Part of the origin of the proposals for a lobbying register during the previous Government was the question of how much money was being paid to these specialist lobbying companies to influence Government. That was the origin of the inquiry. For the first time in my life, I sympathised enormously with the evidence given by the TaxPayers’ Alliance to the inquiry in which it said a narrower definition would be rather better.

Lord Campbell-Savours: When the noble Lord fills in the form that he talks about within the department, does he draw a distinction between official and unofficial engagements and does he register them both?

Lord Wallace of Saltaire: Yes, and we have discussed whether I should put down everyone I meet at a party conference. There comes a point where almost the

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entire political process becomes lobbying. For example, the secretariats of most all-party groups are supported by outside bodies. Are those lobbyists? Is that proper? Should we do away with them? One gets into very deep water quite early on in this field.

Lord Martin of Springburn: My Lords, would journalists in the press gallery, who are therefore registered journalists, be allowed also to be registered lobbyists? In other words, could they hold two occupations?

Lord Wallace of Saltaire: I have to admit that I do not know the answer to that question and will have to write to the noble Lord.

Lord Hamilton of Epsom: Does my noble friend agree that if we restricted the activities of lobbyists and it resulted in fewer all-party groups, that would be a very good idea?

Lord Wallace of Saltaire: There might be no more cakes and wine, I am afraid. Let us be clear: lobbying is an entirely legitimate part of the political process, which would be poorer if we did not have lobbying. The problem is that we have lobbying from professional companies, advocacy groups—many of which are also charities—the CBI, trade unions and others. It is a very complicated area to try to pin down to a single statutory register.

The Countess of Mar: My Lords, when you get a company lobbying, would it be helpful if it were to register on whose behalf it was lobbying, so that when it writes to us, we know who it is lobbying for?

Lord Wallace of Saltaire: My Lords, that is the narrowest definition and where the Government started. The replies to the consultation have taken us much wider than many of us originally intended to be taken. Certainly, the concern—and I am very struck by this in the documents that I am looking at—and perception that there is undue lobbying is very much about large sums of money being paid to professional companies, very often by foreign Governments.

Lord Dubs: My Lords, on the question of all-party groups, does the Minister agree that if professional lobbyists insinuate themselves into all-party groups, that is a breach of the standards that we ought to expect, both as regards this House and the wider public? Although we have had several goes at cleaning this up, there is a lot still to be done.

Lord Wallace of Saltaire: I agree that we have to be very careful about all-party groups. It is a matter for both Houses as much as anything else. However, one might not want to say that Universities UK for example, which happens to assist the All-Party Group for Further Education, Skills and Lifelong Learning, is a lobbying company and should not be allowed to support that group. There is a gradation here; one has to think about what is proper and what is not.

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Lord Hughes of Woodside: My Lords, when the Minister writes to the noble Lord, Lord Martin, will he also place a copy in the Library?

Lord Wallace of Saltaire: Certainly.

Lord Swinfen: My Lords, when we have a register of lobbyists, will it be illegal for those not on the register to lobby?

Lord Wallace of Saltaire: There is a voluntary register of public relations companies, which was established in the wake of an earlier inquiry in 2009. However, one of the three bodies that joined that register has now left it. Even within the public relations industry, they disagree among themselves as to who exactly one should be regulating.

Lord Greaves: My Lords, does my noble friend agree that there is nothing wrong whatever with people and organisations lobbying Members of Parliament and, indeed, lobbying Members of your Lordships’ House, much as though many Members of this House might prefer it not to happen? The important thing is absolute transparency and clear rules about the use of money.

Lord Wallace of Saltaire: I agree very strongly. We all need to defend the usefulness of representational groups, advocacy groups, think tanks and others in contributing to our information. We all get lots of e-mails from those groups as we approach legislation and other things. That is a desperately important part of the open, democratic political process—so long as we are sure that we know what is going on and that it is transparent.



3.23 pm

Asked by Baroness Pitkeathley

To ask Her Majesty’s Government whether they will take steps to encourage giving to the United Kingdom charitable sector in the light of the recent report UK Giving 2012 that reported a drop in donations of 20 per cent in real terms.

Baroness Pitkeathley: My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw attention to my charitable interests as listed in the register.

Lord Wallace of Saltaire: My Lords, the report does suggest a worrying drop in giving. However, this is yet to be confirmed as a trend, and there is some debate within the sector about whether this is what charities are experiencing on the ground. The Government remain committed to taking action to ensure that Britain continues to be a generous country, in giving both money and time.

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Baroness Pitkeathley: The Minister is right that there is some dispute about the figures, but I wonder whether he is familiar with the latest report by the Charities Aid Foundation that one in six charities think that they will have to close over the next year and that half are already using their reserves because of a fall in donations, cuts in public spending and much increased demand for their services. How do the Government think that this will impact on their vision of the voluntary sector and charities being a vital part of the delivery of public services and, indeed, on the Prime Minister’s hopes for the big society?

Lord Wallace of Saltaire: My Lords, I have also seen that report and looked at it in some detail. It is interesting, incidentally, that as of September this year there were 2,000 more charities registered than there had been three years before so the trend has not, so far, been downwards, but it is worrying. From my experience of the charities sector, and I have visited a large number of additional charities since I took over this post, I am shaken by some that I meet in Yorkshire that are almost entirely dependent on public funds. That seems unwise. I strongly approve of those that raise some of their money through their own activities. The social enterprise model is very much part of what charities should be doing. The Government are doing a whole range of things to encourage the new generation to give more of their time and money. The National Citizen Service is one of them.

Baroness Barker: My Lords, given that the number of donations being given online and by text is increasing, does the Minister agree that charities are losing out, because gift aid is not yet fully digitised? Does he agree that it is imperative that the Government help charities to achieve a universal declaration of gift aid so that online giving can be much more beneficial than it is now?

Lord Wallace of Saltaire: My Lords, I strongly agree with the noble Baroness. We are also looking at the difficulties of payroll giving. The Government want to encourage it. A small number of, by and large, large companies make that easy for their employees. We would like to see an expansion of payroll giving. The figures suggest that older people are now much more generous than the younger generation, and we do not entirely know the reasons. Again, that is not entirely fitting. I trust that all Members of this House are giving at least 10% of their income to charity.

Lord Grenfell: My Lords, I spent some years living in the United States. I was always struck there by the efficacy of the system that they have, in which where contributions to charities are fully deductible. The US Treasury seems to have worked out that the more that is given by individuals, the less the eventual burden on the taxpayers because they are taking up a lot of the strain from the taxpayers. This is not rocket science. Successive Governments here never seem to look at this as a serious proposition. Why not?

Lord Wallace of Saltaire: I do not entirely agree with the noble Lord, Lord Grenfell. I have a relative in the United States who managed, by making donations

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of various sorts to his university library, to avoid paying almost any tax the previous year. One wants to encourage people to be generous. The Small Charitable Donations Bill, which we will be dealing with next week, is part of that. We need to consider how one asks for larger donations and makes them tax-beneficial. I remind people that legacies are also important, but a charity which I was talking to last week said that the problem with legacies is that people offer them to you, then stick around for many years.

Baroness Berridge: My Lords, have the Government assessed whether the decline in charitable giving is connected to an increasing rise in the practice of charity mugging, commonly called chugging, where members of the public are approached by representatives, who may be working for agencies, to sign a direct debit? In particular why is it that if they are holding a cash tin they need a licence from the local authority, but if they make an approach for a direct debit they do not?

Lord Wallace of Saltaire: My Lords, the noble Lord, Lord Hodgson, dealt with chugging in his review of the Charities Act. We wish to encourage a broader base for giving among small donors. Chugging has been with us for some time. It is not a new phenomenon.

Lord Best: My Lords, in terms of the giving of time through volunteering, as well as the giving of money, it is good news that the Government are supporting more volunteering for sports as part of the legacy from those wonderful games makers at the Olympics. Will that same support for volunteering be extended beyond just sporting activity to other kinds of volunteering, such as the work that the WRVS is currently doing in sending volunteers in to help people who are living alone and suffering from loneliness?

Lord Wallace of Saltaire: My Lords, the Government’s join in scheme is very much intended to take on the spirit of the Olympics and extend it to a whole range of other activities. I visited a National Citizen Service course this summer. I had been relatively sceptical about National Citizen Service until then, but I was completely bowled over by the young people who were taking the course who were learning how to go out, raise money, help people and develop schemes. I would like to see many more people have the opportunity to learn how they can contribute more actively to society. It was a bunch of people from one of the poorer areas of Bradford, and it was delightful to see that they were learning to give their time and were managing to raise money.

Baroness Uddin: My Lords, during the noble Lord’s wide-ranging visits to different areas and charitable organisations, what assessment has he made of the impact of the current economic crisis, particularly on BME women’s organisations, given the Government’s commitment to empowering women and those dealing with domestic violence and increased reports of forced marriages and honour-based violence?

Lord Wallace of Saltaire: My Lords, what happens to different charities depends partly on how heavily they depend on public funds and what their donor or

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social enterprise base is. I am aware of several charities in Yorkshire that deal particularly with women. Their current trajectory is very different depending on their funding base.

NHS: Clinical Networks


3.31 pm

Asked by Baroness Thornton

To ask Her Majesty’s Government how they will address any shortfall in the funding of clinical networks.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, national funding for clinical networks has been maintained at £33.6 million since 2009. Forty-two million pounds has been allocated by the NHS Commissioning Board to support strategic clinical networks and clinical senates in 2013-14. It is for local health communities and the board to determine the number and size of networks, based on patient flows and clinical relationships, and to deploy their resources appropriately.

Baroness Thornton: I thank the Minister for that Answer. His boss, the Secretary of State, is on the record as saying that clinical networks funding is increasing and will continue, yet on Monday a freedom of information survey revealed severe cuts to budgets and staff in clinical networks, so I wonder who is right. Cancer networks are cut by 26% and stroke and cardiac by 12% in the same period—2009-13—with the loss of hundreds of experienced and motivated staff. Do the figures that the Minister has given to me also cover clinical senates? Will those cuts be restored? What incentives are the Government putting in place to ensure that local health organisations contribute to the additional funding of cancer networks? Indeed, how will the local diabetes networks be supported in the new commissioning regime? We know that these networks work.

Earl Howe: My Lords, I agree with the noble Baroness’s last comment. These networks are extremely valuable. I confirm that the figure I gave her in my Answer of £42 million covers clinical senates as well. It is perfectly correct that the share of the pot which cancer networks will be able to avail of is likely to be smaller next year than it is this year. However, I can categorically confirm that, as I said in my Answer, national funding has not been cut to date and is going up next year very considerably. Furthermore, we should recognise that the Commissioning Board’s announcement amounts to a ringing endorsement of the value of networks in improving patient outcomes. Not only will funding be increased but for the first time there will be nationally supported networks for mental health, dementia and neurological conditions as well as maternity and children’s services. I say to the noble Baroness that recruitment to the networks is proceeding very smoothly and encouragingly.

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Lord Sharkey: My Lords, I declare an interest as a lay member of a cancer network lung cancer group. I know the Minister is aware that our survival scores for lung cancer need improvement and that early diagnosis is the key to that improvement. In the light of that, what steps are being taken to make absolutely certain that any reduction in the number, staff or funding of cancer networks does not damage the efforts to improve early diagnosis?

Earl Howe: My Lords, I am grateful to my noble friend. As regards cancer, it is important to look at what the Government are doing across the piece. As the noble Lord may recall, the cancer strategy that we published a while ago is backed by more than £450 million of investment. This is specifically to target earlier diagnosis of cancer; to give GPs increased access to diagnostic tests; to allow for the increased testing and treatment costs in secondary care; to support campaigns; and so on. That is a large sum of money and it is committed.

Lord Kakkar: Does the Minister envisage a role for the to-be-designated academic health science networks in delivering clinical networks in the future? I declare my interest as chair for quality, University College London Partners academic health science partnership.

Earl Howe: My Lords, yes. National guidance is being produced by the NHS Commissioning Board, setting out the different areas of focus for academic health science networks, health and well-being boards, local education and training bodies and clinical senates. The defined geographies of the 12 network support teams have been developed precisely to gain close alignment and therefore promote close relationships and co-operation with the other structures in the new system—including academic health science networks.

Baroness Masham of Ilton: My Lords, how are clinical network members recruited? Are they advertised?

Earl Howe: My Lords, in some cases, yes, but we anticipate that many members of existing networks will be transferred across into the new ones.

The Countess of Mar: My Lords, the people with CFSME were greatly heartened in 2008 when the Chief Medical Officer ring-fenced £8 million to set up clinical networks on their behalf. They have become disillusioned as the funding of these networks has gradually been cut. There is also no provision for children in the clinical networks. What priority is given to CFSME?

Earl Howe: My Lords, strategic clinical networks are only one category of network in the new system. There is nothing to stop professional groups coming together to share best practice and support professional development. In addition, clinical commissioning groups may well wish to establish networks to support local priorities and ways of working; and providers may use a network model to enable the joint delivery of a service, such as pathology. The noble Baroness, Lady Thornton, rightly referred to the extent to which local

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providers and commissioners already support strategic clinical networks. So there is a variety of ways of doing this.

Lord Patel: Does the Minister recognise that reducing funding for cancer networks will lead to a reduction in staff and therefore a reduction in the effectiveness of cancer networks?

Earl Howe: My Lords, Professor Sir Mike Richards, the national cancer director, said the other day:

“Although cancer networks will have a smaller proportion of the budget in the future, there are still backroom efficiencies that can be made to make things work more effectively. Increasing the footprint of each network will make them more cost-efficient”.

I have spoken to him personally and he is confident that the available budget can still be used to ensure that there is at least equal cost-effectiveness of networks.

North Korea

Private Notice Question

3.38 pm

Asked by Lord Alton of Liverpool

To ask Her Majesty’s Government what is their assessment of the impact on regional and world security of North Korea’s recent missile launch.

Lord Alton of Liverpool: My Lords, I beg leave to ask a Question of which I have given private notice. I declare a non-pecuniary interest as the chairman of the All-Party Group on North Korea.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, we condemn North Korea’s satellite launch. This test of its ballistic missile technology is in clear violation of UN Security Council Resolutions 1718 and 1874. This provocative act will only serve to increase regional tensions and undermine prospects for peace in the peninsula. The UK is urgently consulting with the UN Security Council and we have urged North Korea to return to constructive international negotiations.

Lord Alton of Liverpool: My Lords, I am grateful to the Minister for her response. Is not this highly provocative act, coming a week before South Korea’s elections, an attempt to undermine any attempts at peaceful moves for reconciliation and progress? It is also a wicked waste of resources, estimated at some $800 million. That is enough to feed the entire population of North Korea for a year, in a country where malnutrition and starvation are commonplace. Will the Minister tell the House whether the Government have called in the North Korean ambassador and, if so, what will they say to him? Does she welcome China’s statement this morning, in advance of the Security Council meeting, that,

“Pyongyang should … abide by relevant UN Security Council resolutions … which demands the DPRK not to conduct ‘any launch using ballistic missile technology’ and urges it to ‘suspend all activities related to its ballistic missile programme’”?

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Baroness Warsi: I agree with the noble Lord. I think that the timing of this testing is indeed important and relevant, so soon after the US elections and the transfer of power in China and just before the elections in Japan and South Korea. We are looking at the timing of this matter in some detail. I also agree with the noble Lord that for a country with extreme poverty to be using resources on developing what we feel to be further nuclear missile technology is not an appropriate use of funds.

I can confirm that the North Korean ambassador to the UK was called to the Foreign and Commonwealth Office today—indeed, possibly as we speak, he is in a meeting with the Permanent Under-Secretary.

The Lord Bishop of Hereford: My Lords, does the Minister agree that in a country where there is so much human suffering, it would behove North Korea rather more to make a priority of alleviating suffering, as well as seeking dialogue and reconciliation, and that this provocative act, as she described it, damages both those targets? Will she ensure that we do not lose sight of the human rights violations in a country where the United Nations estimates that 200,000 people are held in prison camps?

Baroness Warsi: The right reverend Prelate is right. In a country where both resource and energy could be spent on so much, whether on alleviating poverty or on human rights, this does not appear to be an act which is in the interests of its own people.

Lord Triesman: My Lords, I am grateful to the noble Lord, Lord Alton, for raising the Question today, because we share the concern that this missile test will be destabilising regionally and for the world, and may well provide the grounds for a regional arms race and proliferation.

There have been reports today that part of the missile project has been conducted jointly with Iran. Have the Government any further information on that? Will the process that we will go through on the Security Council resolutions have the same characteristics as were announced about an hour and a quarter ago by the United States: that there should be a full head of steam behind the approach to the United Nations, potentially calling for similar sanctions to those in force on Iran?

Baroness Warsi: I can confirm, my Lords, that discussions are ongoing as to how the United Nations Security Council proceeds in this matter: whether it is by way of a further resolution or a presidential statement; whether further sanctions could be applied; and the nature of those sanctions. On the noble Lord’s question about Iran, I do not have any further information at this stage, but if it is something that I can write to him about, I will.

Lord Guthrie of Craigiebank: My Lords—

Baroness Falkner of Margravine: My Lords—

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The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, there is plenty of time. Perhaps we could hear from my noble friend and then the noble and gallant Lord.

Baroness Falkner of Margravine: My Lords, this has been the third serious provocation in less than four years by North Korea. The noble Baroness referred to the potential of the UN Security Council meeting. Will she assure the House that in the conversations that will be had with China with respect to potential Security Council sanctions against North Korea, the energy dependence of North Korea on China will be discussed, and that China will be pressed not to continue to provide oil to North Korea?

Baroness Warsi: I will certainly take on the views of my noble friend.

Lord Guthrie of Craigiebank: My Lords, having been to North Korea reasonably recently and had less than satisfactory conversations with politicians and the military there, I think that we ought to realise that the one thing that unites North Korea is hatred of the United States. We should do everything that we possibly can to try to get the United States to have a better dialogue with North Korea. Wherever you go in North Korea they remember the Korean War—the monuments are all around the country. It is taught to children from the very first year they go to school. I hope that we can try to influence the Americans to understand this, and they could make a big difference. The Korean War was 60 years ago.

Baroness Warsi: The noble and gallant Lord clearly speaks from experience in relation to his own visit and his own dialogue. I can only speak on behalf of our Government. Even in very difficult circumstances we felt it was appropriate to continue our dialogue and our discussions in whatever opportunities present through our embassy in North Korea.

Lord Soley: Can the Minister tell us a little more about the way we are trying to draw China into a longer and deeper discussion about how we deal with North Korea? China has an enormous problem on its own border, not just because of the military side but also because of starving refugees trying to get across that border. Surely a large part of this must be our attempt to get China more fully engaged in a longer-term proposal as this regime is one of the most awful and most dangerous in the world.

Baroness Warsi: I agree with the noble Lord that China has to be part of the solution in relation to North Korea. The noble Lord will be aware that it is part of the six-nation discussions, which of course also include the United States, Russia and Japan.

Lord Marlesford: My Lords, does my noble friend agree that the only long-term solution to the untold misery of the people of North Korea, and the ending of the serious menace that that state poses to regional and indeed world peace, is its absorption into South Korea? Does she agree that the Chinese would not necessarily be averse to that solution?

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Baroness Warsi: I think that the future of North Korea goes beyond the remit of this immediate Question.

Lord Grenfell: My Lords, it is good news that the ambassador of North Korea has been called in. I have not heard many people mentioning South Korea—the Republic of Korea—in this exchange. Are Her Majesty’s Government speaking to the South Koreans to urge them not to try to take any kind of unilateral action and that whatever they do, it should be done through the United Nations?

Baroness Warsi: As the noble Lord will appreciate, this was a Private Notice Question. I am not sure if any discussions have taken place immediately, certainly within the past 24 hours, on the specific point that the noble Lord raises. We are, however, in general discussions with the South Koreans on this matter and, as I said earlier, they form part of the six-nation dialogue.

Lord Harris of Haringey: My Lords—

Lord Campbell of Alloway: Is it not the wish of the Government now to consult with America and China on how to deal with this situation? We cannot deal with it single-handed.

Baroness Warsi: My noble friend is right. This is not a matter which the UK would seek to deal with in any way single-handedly.

Statute Law (Repeals) Bill [HL]

Order of Recommitment Discharged

3.49 pm

Moved by Lord McNally

That the order of recommitment be discharged.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.

Motion agreed.

Patrick Finucane


3.50 pm

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I would now like to repeat a Statement that was made by the Prime Minister earlier this afternoon in the House of Commons on the murder of Patrick Finucane.

“The murder of Patrick Finucane in his home in North Belfast on Sunday 12 February 1989 was an appalling crime. He was shot 14 times as he sat down

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for dinner with his wife and three children. His wife was injured, and Patrick Finucane died in front of his family.

In the period since the murder, there have been three full criminal investigations carried out by the former Metropolitan Police Commissioner, Lord Stevens. Taken together, they amount to the biggest criminal investigation in British history, led by the most senior police officer, and consisting of more than 1 million pages of documents and 12,000 witness statements obtained with full police powers. As a result of the third Stevens investigation, one of those responsible, Ken Barrett, was tried and convicted in 2004 for the murder of Patrick Finucane.

There was a further report by Judge Cory. Both Lord Stevens and Judge Cory made it clear that there was state collusion in the murder. This itself was a shocking conclusion, and I apologised to the family on behalf of the British Government when I met them last year. But despite these reports, some 23 years after the murder, there has still been only limited information put into the public domain. The whole country, and beyond, is entitled to know the extent and nature of the collusion, and the extent of the failure of our state and Government. That is why, last October, this Government asked Sir Desmond de Silva to conduct an independent review of the evidence to expose the truth as quickly as possible.

Sir Desmond has had full and unrestricted access to the Lord Stevens archive and to all government papers. These include highly sensitive intelligence files and new and significant information that was not available to either Lord Stevens or Justice Cory, including Cabinet papers, minutes of meetings with Ministers and senior officials, and papers and guidance on agent handling. He has declassified key documents, including original intelligence material, and he has published them in volume 2 of his report today. The decision over what to publish was entirely his own—it was entirely a matter for Sir Desmond de Silva. Sir Desmond’s report has now given us the fullest possible account of the murder of Patrick Finucane and the truth about state collusion. The extent of disclosure in today’s report is without precedent.

Nobody has more pride than me in the work of our Armed Forces, our police service and our security forces. I see at close hand the work they do to keep us safe. As Sir Desmond makes clear, he is looking at,

“an extremely dark and violent time”,

in Northern Ireland’s history. I am sure the House will join me in paying tribute to the police and security forces that served in Northern Ireland, but we should be in no doubt that this report makes extremely difficult reading. It sets out the extent of collusion in areas such as identifying, targeting and murdering Mr Finucane; supplying a weapon and facilitating its later disappearance; and deliberately obstructing subsequent investigations. The report also answers questions about how high up the collusion went, including the role of Ministers at the time. Sir Desmond is satisfied that there was not,

“an over-arching State conspiracy to murder Patrick Finucane”,

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but while he rejects any state conspiracy, he does find quite frankly shocking levels of state collusion. Most importantly, Sir Desmond says he is,

“left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA”—

the Ulster Defence Association—

“in February 1989 had it not been for the different strands of involvement by elements of the State”.

He finds that,

“a series of positive actions by employees of the State actively furthered and facilitated his murder”,

and he cites five specific areas of collusion.


“there were extensive ‘leaks’ of security force information to the UDA and other loyalist paramilitary groups”.

Sir Desmond finds that,

“in 1985 the Security Service assessed that 85% of the UDA’s ‘intelligence’ originated from sources within the security forces”.

He is,

“satisfied that this proportion would have remained largely unchanged by … the time of Patrick Finucane's murder”.

Secondly, there was a failure by the authorities to act on threat intelligence. Sir Desmond describes,

“an extraordinary state of affairs ... in which both the Army and the RUC SB”—

Royal Ulster Constabulary Special Branch—

“had prior notice of a series of planned UDA assassinations, yet nothing was done by the RUC to seek to prevent these attacks”.

When you read some of the specific cases in the report —page after page in chapter 7—it is really shocking that this happened in our country. In the case of Patrick Finucane, he says that,

“it should have been clear to the RUC SB from the threat intelligence that ... the UDA were about to mount an imminent attack”,


“it is clear that they took no action whatsoever to act on the threat intelligence”.

Thirdly, Sir Desmond confirms that employees of the state and state agents played “key roles” in the murder. He finds that,

“two agents who were at the time in the pay of … the State were involved”—

Brian Nelson and William Stobie—

“together with another who was to become an agent of the State after his involvement in that murder”.

It cannot be argued that these were rogue agents. Indeed, Sir Desmond concludes that Army informer Brian Nelson should,

“properly be considered to be acting in a position equivalent to an employee of the Ministry of Defence”.

Although Nelson is found to have withheld information from his Army handlers,

“the Army must bear a degree of responsibility for Brian Nelson's targeting activity during 1987-89, including that of Patrick Finucane”.

Most shockingly of all, Sir Desmond says that,

“on the balance of probabilities … an RUC officer or officers did propose Patrick Finucane … as a UDA target when speaking to a loyalist paramilitary”.

Fourthly, there was a failure to investigate and arrest key members of the West Belfast UDA over a long period of time. As I said earlier, Ken Barrett was

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eventually convicted of the murder, but what is extraordinary is that back in 1991, instead of prosecuting him for murder, as the RUC CID wanted to, the RUC Special Branch decided instead to recruit him as an agent.

Fifthly, this was all part of what Sir Desmond calls a wider,

“relentless attempt to defeat the ends of justice”,

after the murder had taken place. Sir Desmond finds that,

“senior Army officers deliberately lied to criminal investigators”.

The RUC Special Branch, too,

“were responsible for seriously obstructing the investigation”.

On the separate question of how certain Ministers were briefed, while Sir Desmond finds no political conspiracy, he is clear that Ministers were misled. He finds that,

“the Army and Ministry of Defence (MoD) officials provided the Secretary of State for Defence with highly misleading and, in parts, factually inaccurate advice about the … handling of … Nelson”.

On the comments made by Douglas Hogg, Sir Desmond agrees with Lord Stevens that the briefing he received from the RUC meant he was “compromised”. But he goes on to say that there is,

“no basis for any claim that he intended his comments to provide a form of political encouragement for an attack on any solicitor”.

More broadly on the role of Ministers, Sir Desmond says that there is,

“no evidence whatsoever to suggest that any Government Minister had foreknowledge of Patrick Finucane's murder, nor that they were subsequently informed of any intelligence that any agency of the State had received about the threat to his life”.

He says that the then Attorney-General, Sir Patrick Mayhew deserves,

“significant credit for withstanding considerable political pressure designed to ensure that Brian Nelson was not prosecuted”.

As a result, of course, Nelson was prosecuted in 1992, following the first investigation from Lord Stevens.

The collusion demonstrated beyond any doubt by Sir Desmond, which included the involvement of state agents in murder, is totally unacceptable. We do not defend our security forces, or the many who have served in them with great distinction, by trying to claim otherwise. Collusion should never, ever happen. So on behalf of the Government, and the whole country, let me say again to the Finucane family, I am deeply sorry.

It is vital that we learn the lessons of what went wrong, and for Government in particular to address Sir Desmond's criticisms of,

“a wilful and abject failure by successive Governments to provide the clear policy and legal framework necessary for agent-handling operations to take place effectively and within the law”.

Since 1989, many steps have been taken to improve the rules, procedures and oversight of intelligence work. There is now a proper legal basis for the security services, and the Regulation of Investigatory Powers Act 2000 has established a framework for the authorisation of the use and conduct of agents. In addition, the activities of individual agents are now clearly recorded, along with the parameters within which they must work. The Intelligence Services Commissioners and the Office of Surveillance Commissioners now regulate the use

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of agents and report publicly to this House. Taken together, these changes are designed to ensure that the failures of 1989 could not be made today.

Policing and security in Northern Ireland have been transformed, reflecting the progress that has been made in recent years. The Force Research Unit and the Special Branch of the RUC have both gone, and the Police Service of Northern Ireland is today one of the most scrutinised police forces anywhere in the world. It is accountable to local Ministers and a local policing board and it commands widespread support across the whole community.

Through all these measures, both this Government and their predecessors have shown a determination to do everything possible to ensure that no such collusion ever happens again. We will study Sir Desmond’s report in detail to see what further lessons can be learnt, and I have asked the Secretaries of State for Defence and Northern Ireland and the Cabinet Secretary to report back to me on all the issues that arise from this report. I will publish their responses. Other organisations that are properly independent of Government—police and prosecuting authorities—will want to read the report and consider their own responses.

Sir Desmond says that his conclusion,

“should not be taken to impugn the reputation of the majority of RUC and UDR officers who served with distinction during what was an extraordinarily violent period”.

He goes on to say that,

“it would be a serious mistake for this Report to be used to promote or reinforce a particular narrative of any of the groups involved in the Troubles in Northern Ireland”.

I am sure that those statements will have wide support in this House. We should never forget that over 3,500 people lost their lives and there were many terrible atrocities. Sir Desmond reminds us that the Provisional IRA,

“was the single greatest source of violence during this period”,

and that a full account of the events of the late 1980s,

“would reveal the full calculating brutality of that terrorist group”.

During the Troubles, over 300 RUC officers and 700 British military personnel were killed, with over 13,000 police and military injured. I pay tribute to them and to all those who defended democracy and the rule of law and who have created the conditions for the progress we have seen. We must not take that progress for granted, as we have seen this week, and I pay tribute again to those in the PSNI who are once again in the front line today. We must not and we will not allow Northern Ireland to slip back to its bitter and bloody past.

The Finucane family suffered the most grievous loss and they suffered it in the most appalling way imaginable. I know they oppose this review process and I respect their views. However, I respectfully disagree with them that a public inquiry would produce a fuller picture of what has happened and what went wrong. Indeed, the history of public inquiries in Northern Ireland would suggest that had we gone down that route, we would not know now what we know today.

Northern Ireland has been transformed over the past 20 years and there is still more to do to build a genuinely shared future. One of the things this Government can do to help is to face up honestly

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when things have gone wrong in the past. If we as a country want to uphold democracy and the rule of law, we must be prepared to be judged by the highest standards, and we must also face up fully when we fall short. In showing once again that we are not afraid to do that, I hope that today’s report can contribute to moving Northern Ireland forward. In that spirit, I commend this Statement to the House”.

My Lords, that concludes the Statement.

4.05 pm

Baroness Royall of Blaisdon: My Lords, I thank the Leader of the House for repeating the Statement on Patrick Finucane given by the Prime Minister earlier in the other place. In addition, from the Opposition Benches in this House, I also thank Sir Desmond de Silva for his work and how he went about his task. He has produced a serious report within the terms of reference that he was set. It will take time to absorb its full details. I welcome the Prime Minister’s apology, which was set out in the Statement repeated by the Leader, to the Finucane family. It is the right thing to do.

We should begin by remembering the unimaginable horror of Pat Finucane’s murder. This was a husband, a father, a brother who was murdered in his own home as he sat with his family on a Sunday evening. Some 23 years after this appalling crime, his family still searches for the truth with courage and dignity.

This report provides disturbing and uncomfortable reading for all of us. It makes clear that there was collusion in the murder and a cover-up. Furthermore, it states that,

“agents of the State were involved in carrying out serious violations of human rights up to and including murder”.

Of course, this should not diminish the service of thousands of police officers, soldiers and Security Service personnel who were dedicated to protecting and serving people in Northern Ireland, and who have my admiration and that of all of us in this House today. They will be as appalled as we all are by the findings.

As we examine and assess the findings of this report and whether it is adequate, it is essential that we remember the background. An investigation into the murder of Pat Finucane in which the public had confidence was an important part of the peace process, a process which is held in trust from Government to Government, which began under Sir John Major and has continued since.

In 2001, at Weston Park, the Irish and British Governments agreed to appoint a judge of international standing to examine six cases in which there were serious allegations of collusion by the security forces. This applied in both jurisdictions: the UK and Ireland. It was agreed that in the event that a public inquiry was recommended in any of the cases, the relevant Government would implement that recommendation.

Judge Peter Cory was appointed and recommended that public inquiries were necessary in five cases. Three of those on the UK side have been completed and the one inquiry recommended on the Irish side is expected

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to report next year. The only outstanding case in which a public inquiry was recommended but has not taken place is that of Pat Finucane.

The previous Government could not reach consensus with the Finucane family on arrangements for an inquiry but, towards the end of our time in office, the Finucane family indicated that they would support a public inquiry under the Inquiries Act 2005 and had begun to discuss a way forward. We on this side continue to believe that we should abide by our obligations under the Weston Park agreement.

First, do the Government recognise the concern that the failure to hold a public inquiry is in breach of agreements that were an essential part of the peace process? Secondly, Sir Desmond has accepted the assurances of the state that he has been given all relevant material. But this is the same state the agents of which were involved in what the report describes at paragraph 116 as,

“carrying out serious violations of human rights up to and including murder”,

and the same state whose previous criminal investigations into this matter were the subject of “serious obstruction”.

Do the Government therefore recognise the concern about the limits to what the de Silva inquiry could do? Will the Leader of the House explain why the Prime Minister believes that a public inquiry would not have produced a fuller picture in which the public could have had confidence, as Mr Justice Cory recommended, not least because of the opportunity to cross-examine witnesses? In his Statement repeated by the Leader, the Prime Minister said he disagreed with the Finucane family that,

“a public inquiry would produce a fuller picture of what happened and what went wrong”.

I respectfully disagree with him.

Thirdly, the de Silva report concludes that,

“a series of positive actions by employees of the State actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice”.

What do the Government propose to do in response to these serious findings?

Fourthly, the British and Irish Governments have been as one on this issue. Will the Leader of the House say what discussions the Government have had with the Irish Government about the de Silva review, and what the position of the latter is today?

That takes me to the final issue: public confidence. That we continue to build trust and confidence among the communities of Northern Ireland remains crucial. The appalling violence we have seen on the streets of Northern Ireland in recent days should remind us of that. Judge Cory said that a public inquiry was needed into the murder of Pat Finucane because,

“without public scrutiny doubts based solely on myth and suspicion will linger long, fester and spread their malignant infection throughout the Northern Ireland community”.

Can the Government really say with confidence that the whole truth has been established in the case of Pat Finucane? How can we say that when the report is dismissed by his family and many others in Northern Ireland?

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We, as the United Kingdom, must accept that sometimes our state did not meet the high standards we set ourselves during the Northern Ireland conflict. The past is painful and often difficult. We believe that we must establish the full and tested truth about Pat Finucane’s murder. We therefore continue to believe that a public inquiry is necessary for his family and for Northern Ireland.

4.10 pm

Lord Strathclyde: My Lords, I thank the noble Baroness the Leader of the Opposition for her response to the Statement. She is right that it is essential that we should remember the background against which we operated at that time and, following on from that, she is right to note the enormous changes that have taken place during the course of the past 25 years, most of all during the peace process in the past 20 years. The noble Baroness asked a number of questions, to which I shall try to reply.

Perhaps I can deal with one question relatively quickly, on the Irish Government and their likely position. I can confirm that the Prime Minister spoke this morning to the Taoiseach, Enda Kenny. The position of the Irish Government, that they have been in favour of a public inquiry, has been widely known for a long time. However, they understand why we have taken the decision that we have taken, and they respect that we have been entirely open and frank. I hope that they, like everybody else who has an interest in this issue, will find some comfort in the integrity of the process once they have considered Sir Desmond’s report. The position of the Irish Government is, of course, one for them to determine.

I am well aware that the decision not to hold a public inquiry was controversial. However, our ambition and motivation as a Government was to frame a real question: what is the fastest way to get to the truth and to lay out what happened? We know what has happened in the past with public inquiries; some of them took five or six years, or even longer, cost tens of millions of pounds and perhaps did not even get closer to the truth than de Silva has got in his report today. We therefore very much support our decision to have this inquiry led by Sir Desmond de Silva.

At the time of the general election, this went to the core of the point made by the noble Baroness about confidence in Northern Ireland and in the process that we have conducted. In answer to whether we can say with full confidence that the whole truth has been uncovered, this is a very long report and individual noble Lords will want to review and read with care what has been said. However, it is clear that Sir Desmond de Silva has done the whole nation a tremendous service in trying to get to the heart of the matter and uncover the truth, building on the work that had been done by previous individuals. This was a fast way to find the truth. That is a good thing for Northern Ireland.

With the greatest respect to the noble Baroness, her Government had nine years between Weston Park and the general election to decide to go ahead with a public inquiry. It is not a decision that they took, possibly because they understood as much as we have done the problems of time and expense. The key thing is to get to the truth. I venture to suggest that very few

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countries would have set it out in so much detail or laid out what went wrong as comprehensively as we have done today. We should all take some pride in a country that is willing to do that. It is an agony in many respects to read what has been said, but it is right to publish and to ensure that people who have been affected can see the work that Desmond de Silva has done. That is very much the basis of the decision that we took and we stand by it.

Earl Attlee: My Lords, I remind the House of the benefit of short questions for my noble friend the Leader of the House, so that he can answer as many as possible.

4.16 pm

Lord Alderdice: My Lords, I thank my noble friend for repeating the Statement. I thank the Prime Minister for instituting the de Silva inquiry and for his apologetic and sympathetic response to the Finucane family.

No Member of this House could listen to the Leader of the House reading out the Statement without being deeply shocked and dismayed at its horrifying content. This cannot be other than a source of national shame. One of our citizens was murdered in his own home with the collusion of state agents, and subsequently, for 23 years, there has been obstruction of the proper authorities in the investigation of these matters, including by senior officials in the Ministry of Defence, the police and security services, to the point, according to this report, that Ministers were lied to and misled, and they then misled Parliament. How is it possible to hold our own authorities to account if they are being so grossly misled in this way? This is a time for deep national shame and self reflection because it begs real questions.

It does no credit to our House to refuse to accept the clear reality of what went on. Authorities here must learn that you do not defend democracy by undermining the very principles of democracy, decency, honesty and of abiding by the proper law. I trust, although I frankly do not believe it, that some elements of government in Northern Ireland understand that playing footsie with paramilitaries and colluding with them, including in threats to some of my own friends recently, is no way to promote democracy. It is a travesty of democracy. How can we assure ourselves that these things will not happen in the future? We will not do so merely by responding to this Statement; I trust that there will be a full debate in your Lordships’ House and that we will properly learn the lessons, not by more inquiries but by more decisions as to how we hold these matters to account in the future.

Lord Strathclyde: My Lords, I understand exactly what my noble friend is saying and the force with which he says it, with all the experience and knowledge that he has in his personal background and the part that he has played in Northern Ireland. He is right in saying that none of us could hear the Statement made by the Prime Minister without being deeply shocked and dismayed by what has happened—the level of collusion and the cover up that took place thereafter.

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He said that it was a national shame and he is right, but part of dealing with that is to confront it by having the review that we have taken, publicising it and apologising for what happened. There is also the second point, which I think my noble friend was referring to, about what has changed and how to ensure that these things do not happen again. The background within which the security services operate is so entirely different from that existing in the late 1980s when there was no legal framework against which they operated.

RIPA 2000 created a proper legal and policy framework within which to gather intelligence. There is now therefore an unambiguous framework which puts all work relating to agents on a statutory footing and is designed to prevent the same mistakes and abuses being made today. RIPA is also underpinned by a range of non-statutory frameworks and codes of practice which set out clear processes for the day-to-day management of agents by relevant agencies. Managers, the PSNI and the security services are required to ensure that staff comply with this legislation. The Statement referred to the PSNI now being the police force with more scrutiny that any other in the world. I think that that is right.

Lord Maginnis of Drumglass: My Lords, as somebody who has been fortunate to survive 10 murder attempts by the Provisional IRA, I find this isolated apology quite ridiculous. The reality is that the Finucane family were an IRA family. I illustrate this by saying that when I made that allegation publicly and was being sued for libel, the family retracted and paid my legal expenses. Let us not therefore fool ourselves about the “Godfather” Finucane who was killed. If there was connivance, let me say that all of us who served through the heart of the Troubles in Northern Ireland served in such a way that it was impossible to have a secret. Why were there 10 attempts on my life? Why was the noble Lord, Lord Kilclooney, shot? It was because there was conspiracy.

I point out that less than 1% of all terrorist suspects involved in proactive security force operations were killed by the security forces, and that 99% of cases ended in arrest. There were no incidents of unlawful killing in a Special Branch-led operation in Northern Ireland, and the security-force response was totally human-rights compliant. Let us not forget all those years of terrorism and become compelled by a single incident which may in fact—and I will not deny it—have involved conspiracy. If one sought justification—and I do not justify it—it was not without a godfather. Godfathers were responsible for so many murders in Northern Ireland, it should not be forgotten.

Lord Strathclyde: My Lords, the noble Lord, Lord Maginnis, brings his own particular view of these issues. Indeed, Sir Desmond looked at the accusation that Patrick Finucane was a member of PIRA, and on the basis of the evidence that he saw he concluded that he was not. I know that that was not the entire point that the noble Lord was making, but the Government have nothing to add to Sir Desmond’s conclusions on this point.

I am bound to say that the question of PIRA membership is not in this case particularly relevant. The point that was made in the Statement and as a

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result of the review is that the state should not have been involved in Patrick Finucane’s murder. It is on that basis that the state has made the apology.

Lord King of Bridgwater: My Lords, I declare an interest. I was Secretary of State for Northern Ireland when Patrick Finucane was murdered and I was Secretary of State for Defence when the possible prosecution of Brian Nelson arose. I join my noble friend in recognising —as he did in repeating the Prime Minister’s Statement, and as we all must—that this was an appalling crime of which we should all be ashamed. It should not have happened and it is particularly appalling because there is clear evidence of significant collusion. It was an appalling crime at what the Statement calls a dark and violent time in Northern Ireland. I was not surprised at the contributions of the noble Lords, Lord Maginnis and Lord Alderdice. The House has had the opportunity to sense some of the tensions that so rapidly rise to the surface, and which one can now see on the streets of Belfast.

That is in no sense an excuse for what happened. One of the things that I most resent about this is that the appalling things that happened in this case sully the reputation of very brave security forces who, over all those years and with huge personal suffering to them and their families, stood to protect the Province of Ulster, Northern Ireland, against the risk of total disaster. We should recognise that.

I take exception to one element of the Statement repeated by my noble friend: namely, the phrase “state involvement”, which is now current. I understand why it has arisen. It gives the impression that somehow the Government planned the murder of Patrick Finucane. It is an appalling concept that I as Secretary of State somehow authorised it. Of course, that is totally untrue. In my time I committed myself to trying to save every life that I possibly could on both sides of the community, however people were involved.

What is also clear is that there were incidents in which people were in clear breach of their orders or instructions. The Statement claims that there was no co-ordinated legal basis for the employment of agents. I draw the attention of the House to something in Sir Desmond de Silva’s report which states that agents were being handled at that time under the strict instruction of the Commander Land Forces Northern Ireland, Tony Jeapes, that it was unlawful for any person to authorise any illegal act, and that if there was any possibility of an agent becoming involved in criminality, the assistant chief of staff was to be informed through the commanding officer of the FRU so that preventive measures could be taken. Mr Nelson’s handler was acting in total breach of that instruction at the time. I should say that some of the agents, informers or touts—they go under different names in Northern Ireland—were incredibly brave people who saved an enormous number of lives. The difficulty of handling them should not be underestimated.

This is an impressive report. One or two people have already passed judgment on it. Nobody can have read it yet except the Prime Minister, who obviously was briefed on it. I have only managed to read the executive summary. There is an enormous amount in the report. It needs further study and I will not pay

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great attention to any comments until people have had a chance to read the report through and then address the issue of whether there should be a further public inquiry. I have great respect for the noble Baroness and understand why she said that a public inquiry might ensure that we would get to the truth. There are no grounds for saying that until we have seen how close we think Sir Desmond de Silva has got to the total truth of the matter, and considered what could be achieved by going for a further public inquiry. This is what challenged the previous Government and why, nine years on, there has been no progress. This is what they were wrestling with. It is difficult to see what the benefit of a public inquiry would be, and I can see some real disadvantages, not least because there should be prosecutions arising from some of the things in the report. If we go for public inquiry, it would probably prevent that being possible.

Lord Strathclyde: My Lords, I very much agree with what my noble friend said about the public inquiry. He has heard what the Prime Minister and I said on that question. My noble friend started by saying that this was an appalling crime. He is right. The key thing for us to remember—this is another thing he said—is that the accusation of state collusion sullies the memory of all those individuals who fought to defend democracy without having to go down this route. That is what makes this so appalling.

Of course I entirely agree with my noble friend that this is a lengthy report that has taken many months to compile. It builds on the work of previous investigations, including that of a distinguished Member of this House. There were a million pages of documents. This is the most comprehensive of comprehensive reports and it requires time to look at it.

On the question of Ministers’ knowledge, de Silva is very clear. He says there is:

“no evidence whatsoever to suggest that any Government Minister had foreknowledge of Patrick Finucane's murder ... nor that they were subsequently informed of any intelligence that any agency of the State had received about the threat to his life”.

There is no evidence at all that any Ministers had any knowledge at the time of Nelson’s targeting activity, or that they were encouraged or directed in any collusive activity with the UDA. That is a very strong statement.

Baroness O'Loan: My Lords, the de Silva report is profoundly disturbing with its statement that Sir Desmond is satisfied that Patrick Finucane was identified by a police officer for targeting, that he was targeted, that he was not warned of the risks to him—risks which existed in 1981, 1985 and 1989—despite the extent of the knowledge of the activities of these UDA men, and that the investigation into his murder was repeatedly obstructed—all examples of state collusion. The Prime Minister has rightly apologised yet again to his family for what the Prime Minister described as,

“shocking levels of state collusion”.

Mr Finucane was not involved in IRA activity. He was a lawyer carrying out his professional duties in profoundly difficult and dangerous circumstances. I am sure that Members of this House will again wish to express their sympathy to the Finucane family, just as I am sure that all those upright officers with integrity in the

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army, the police and the security services will wish to share their sympathy at the pain that the Finucane family must be experiencing again today.

But this was not an isolated situation. Investigation has shown that this pattern of activity was not unique to the UDA in west Belfast. The Prime Minister has stated, and the noble Lord has repeated, that the Regulation of Investigatory Powers Act has established a framework for the authorisation and conduct of agents. However, as Police Ombudsman I found as recently as 2003 that the Surveillance Commissioner was not being properly informed about UVF agents who were engaged in murders, attempted murders and other very serious crimes. Given the very small office of the Surveillance Commissioner, the pattern and nature of the investigations and inspections which are carried out by the Surveillance Commissioner, and particularly the resources available to the Surveillance Commissioner, is the Minister satisfied that there is adequate funding to enable the identification of any police failures in the handling and management of state agents?

This remains a profoundly important question. We have in Northern Ireland ongoing activities of republican paramilitaries, including the recent bomb in Derry. We have ongoing loyalist paramilitary activity. We have the current loyalist disturbances, which have caused huge distress and damage in Northern Ireland. And most recently we have had threats, not least death threats to a Member of the other place, Naomi Long, who serves constituents in East Belfast. This is a profoundly important matter for the future security of the United Kingdom. I thank the Government for what has been achieved thus far. Having read some of the report this morning, I will consider it further.

Lord Strathclyde: I am very grateful for what the noble Baroness has said. Again it demonstrates what my noble friend Lord King said about the very real tensions that brought about what happened during that dark and miserable period in Ulster. We are all part of a process of moving on from that. Let me deal with the nub of what the noble Baroness said about other cases. If there was collusion here, what else was going on? The Government will carefully consider the conclusions of the report to assess whether it impacts on any other cases. There have been public inquiries, as the noble Baroness knows, into a number of other cases where collusion was alleged. What we have tried to do here is demonstrate that we are prepared to leave no stone unturned in examining these cases and that, where there has been wrongdoing, the Government are prepared to apologise.

Lord Dubs: My Lords, the Leader of the House was slightly unclear when talking about the attitude of the Irish Government. Given that there was a firm agreement between the British and Irish Governments at Weston Park, what is the attitude of the Irish Government to this issue?

Lord Strathclyde: I think what I said was that the position of the Irish Government has been well understood, and that they were in favour of a public

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inquiry. My right honourable friend spoke to the Taoiseach this morning. They will want to read the report as well and come to their own conclusions, but those conclusions are a matter for the Irish Government.

Lord Empey: My Lords, I have been reading the report since 8.30 am. I do not understand how the Official Opposition can come to the conclusion that another inquiry is needed when there are over 500 pages to be gone through. The inquiries into the six cases that flowed from Weston Park have required very substantial amounts of expenditure and effort put into finding the truth. Is the Leader of the House aware that if there is to be another inquiry into this case—and I am seeking his assurance now that that will not happen—I have a list of at least 13 other cases involving multiple deaths over a very long time that have just been completely airbrushed out of history? Can the Minister give an assurance that we are going to stop this process of ongoing and never-ending inquiries and concentrate on building a genuinely shared future, where we move forward instead of raking over the coals of the past for ever?

Lord Strathclyde: My Lords, the noble Lord is entirely correct in what he says. I understand the way that he says it and the reasons for it. We can spend a great deal of time, energy and money raking over the coals of the past. What we sought to do in setting up this review was to find a distinguished individual with the greatest possible reputation to conduct it. Sir Desmond’s report has now given us the fullest possible account of the murder of Patrick Finucane and the truth about state collusion.

I confirm to the noble Lord that we would not expect any further report to yield more information—it is fully in the public domain. Of course, I recognise that, on all sides, dealing with the past is still a live issue in Northern Ireland. However, there are other opportunities for families who lost loved ones to find out more, beyond inquiries, such as through the work of the historical inquiries team and the coronial inquests. I repeat again what I said a few moments ago: there is a time for us to deal with the past but it is even more important for us to deal with the problems of the future and to engage more and more in maintaining a level of peace for the people for Northern Ireland—all the people of Northern Ireland—so that they can prosper.

Crime and Courts Bill [HL]

Crime and Courts Bill

Report (4th Day)

4.38 pm

Schedule 17 : Deferred prosecution agreements

Amendment 116DA

Moved by Lord Beecham

116DA: Schedule 17, page 262, line 43, at end insert—

“( ) The Code shall not come into effect until it has been laid before Parliament, and debated by both Houses.”

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Lord Beecham: My Lords, I cannot claim the prophetic prescience of my biblical near-namesake, so it is entirely fortuitous that the three amendments to which I speak will be debated the day after the announcement of what the media have described as a $1.9 billion, or £1.2 billion, fine imposed by the US authorities on HSBC in relation to charges of money laundering and sanctions busting. I observe in parenthesis that the financial penalty on the company, like those imposed on other banks, is in reality a penalty inflicted on its shareholders and, arguably, its customers. Be that as it may, the relevance of yesterday’s news is that the fine was imposed by way of a deferred prosecution agreement, which embodied other terms, including greater scrutiny of the bank’s affairs—and the involvement of a monitor to be appointed to that effect—and restrictions on bonuses for its top executives.

All three amendments touch on issues that relate to how such matters might be dealt with in the UK once this Bill is enacted. I referred before to the need to carry public opinion with us as we embark on this significant change to the legal system and the way that we deal with corporations whose activities attract breaches of the law and the possibility of substantial proceedings. Amendments 116DA and 116DB facilitate that by requiring a code of practice for prosecutors and any amended code, drawn up, as they will be, by the Director of Public Prosecutions and the director of the Serious Fraud Office, to be laid before Parliament and debated by both Houses. Again I stress that I am not proposing, as I did in Committee, that the code should be subject to the affirmative procedure, merely that it should be debated. I agree with the Minister’s assertion in his letter to me of 7 November that:

“The fundamental principle of prosecutorial independence means that it is appropriate for the code to be issued by the DPP and DSFO rather than it being put on a statutory footing in regulations by a government Minister”.

My concern is that Parliament should be able to contribute to the consultation that the directors have undertaken to conduct rather than that the code should be included after the event in the DPP’s annual report to the Attorney-General. Given the scale of the wrongdoing in the HSBC case and the amount of the financial penalty, this seems to be a sensible way forward, since the public will obviously draw comparisons between what is likely to happen in this country and what happened in America. It reinforces the similar suggestion that I made, but did not press to a vote, in relation to the Sentencing Council’s guidelines on financial penalties. It will be interesting to learn in due course whether the approach adopted under this measure is likely to leave open the possibilities of penalties approaching the scale recorded in the HSBC case. Perhaps the Minister will indicate, without pre-empting the role of the Sentencing Council, what his view is. I do not intend to seek a vote on these amendments, but I hope that the Government will give further consideration to this issue, especially in the light of these recent developments.

The third amendment stems directly from the American experience and legal system. I am indebted to my honourable friend Emily Thornberry, the shadow Attorney-General, for the information that she supplied before and after a recent visit about the practice of the

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US Justice Department. I spent 35 years briefing counsel, and it has been a unique and pleasant experience to have undergone this role reversal.

Amendment 119A seeks to adopt the practice and wording set out in the United States AttorneysManual. It is a probing amendment. The US law on corporate criminal liability enhances the prospects of successful prosecutions for fraud because corporations are deemed to be vicariously liable for offences committed by their employees during the course of their duties. Here, by contrast, the prosecution must prove that, to quote the legal phrase, the “directing mind and will” of the company was guilty of the offence, and the concept of the directing mind would imply that a board member or senior manager was involved in the illegality.

I assume that the noble Lord, Lord Green, in his former role as chairman and chief executive of HSBC would, of course, have never countenanced, let alone been involved in, the activities that were the subject of the deferred prosecution agreement in America. I assume that the same will be true of other directors of the company and its managers. In this country, a criminal prosecution of the company would have been much more difficult to mount and the incentive to reach a DPA correspondingly reduced if that principle of the directing mind had been applied.

For this reason, Jonathan Fisher QC of Policy Exchange stated in an article in the Times following the publication of the Government’s consultation paper that:

“it is crucial that the proposed legislation provides that a company is vicariously liable for the acts of employees where a prosecutor can show there was fault or dishonesty by the employees concerned. Unless the Government addresses this critical point, the DPA initiative will be a damp squib”.

There is a precedent for making exceptions to the directing mind principle in the analogous field of bribery law. The Bribery Act 2010 establishes strict liability on a company whose employees or associated persons commit an offence in order to obtain business or a commercial advantage for the company. The company can plead by way of a defence that it has adequate systems and controls to prevent the bribery. There are, of course, other examples where companies could be held liable for breaches of statutory duty.

I should perhaps add that the American experience reinforces the view propounded by my noble and learned friend Lord Goldsmith, who is not in his place this afternoon, that the deferred prosecution agreement procedure should apply to individuals, although I would remain reluctant to see such an extension initially, otherwise than in cases where this might facilitate the application of DPAs to cases of economic crime and fraud.

The outcome of the HSBC case throws into stark relief the difference between the US system and what the Bill in its present form envisages, let alone the current state of the law. In particular, of course, there is every incentive in the US system for a corporation to come to terms on a deferred prosecution agreement because there is the ultimate sanction of a criminal prosecution on the basis of vicarious liability if it does not take that course. Since we all wish to see a sufficient incentive to facilitate the introduction of this new system, I hope that that will appeal to Ministers.

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It is asking too much of the Minister to come back with a considered response either today or in the very limited time available before Third Reading, but I hope that the Government will take the opportunity to review and, if need be, to consult further on this issue during proceedings in the House of Commons. The proposal would extend beyond the realm of economic fraud but, as has been demonstrated in America, it can contribute to the success of the innovation which the Bill seeks to create. I beg to move.

4.45 pm

Lord Mackay of Clashfern: My Lords, I support the change in position made by the noble Lord, Lord Beecham, between Committee and today regarding allowing Parliament to discuss the prosecution code without it being incorporated in a statutory instrument. It might help the Director of Public Prosecutions, the director of the Serious Fraud Office and the prosecuting authorities generally to have the views of Parliament expressed in a debate in Parliament before the code is finally adopted.

Lord Ahmad of Wimbledon: My Lords, Amendments 116DA and 116DB revisit an issue that we considered in Committee: namely, parliamentary scrutiny of a code of practice for prosecutors to support the DPA scheme. However, as the noble Lord, Lord Beecham, said, the issue has changed somewhat. In providing for a code of practice for prosecutors in relation to DPAs, the Government have been clear that the intention is to ensure consistency with other statutory provisions relating to guidance for prosecutors on operational matters. The noble Lord, Lord Beecham, referred to HSBC and the related US experience. As has been said previously, the DPA is a new addition to the UK system, and we will be looking to apply it at a future point. However, for now the Government’s position has been made clear.

The code of practice for DPAs, in the same way as the code for Crown prosecutors, will provide guidance on the exercise of prosecutorial discretion in making decisions and on key procedural and operational matters concerning DPAs. The independence of prosecutors is fundamental to the effective operation of DPAs. Therefore, it is entirely appropriate for the code for DPAs to be issued by the Director of Public Prosecutions and the director of the Serious Fraud Office. The Government have absolute confidence in the directors.

I hear what my noble and learned friend Lord Mackay mentioned in support of the points made by the noble Lord, Lord Beecham. However, the Government do not consider it necessary to make the code subject to parliamentary scrutiny. As DPAs become enshrined in UK law, I am sure that we will return to these issues. Indeed, the opportunity remains for any noble Lord to raise this issue through appropriate parliamentary procedures, be they QSDs or any other.

The approach to publication of the code provided in the schedule is wholly consistent with that under Sections 9 and 10 of the Prosecution of Offences Act 1985 in respect of the code for Crown prosecutors. The code of practice for DPAs, both the first and any future versions, will be provided to the Attorney-General by way of the Director of Public Prosecutions’ annual

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report, and he will in turn lay it before Parliament. The Delegated Powers and Regulatory Reform Committee did not raise any concerns about this proposed approach for the code of practice. The code is an operational document that needs to be responsive to the context in which it operates. The proposed amendments would, in particular, restrict the directors’ ability to amend or update the code as necessary to reflect timely changes in the law or lessons learnt having utilised the DPA process. The key elements of a DPA are clearly set out in the Bill. The code of practice will support the operation of the process, and the directors have committed to consult on its contents.

Amendment 119A would introduce a new and very broad basis for corporate criminal liability. Currently, there is a statutory basis for dealing with specific offending on the part of corporate bodies, for example, statutory provisions exist for dealing with corporate manslaughter, bribery and regulatory offending, such as health and safety rules. There is, however, no legislation which expressly creates general criminal liability for companies. Wider corporate liability is founded upon common law rules which attribute liability to a corporate body where the conduct is on the part of the directors, officers and those who occupy roles at the corporate centre. However, reliance is often placed on individual liability where there are many punishments and sanctions available to deal with economic or financial wrongdoing. This is, to a degree, due to the fact that corporate prosecutions are much more difficult and complicated than individual prosecutions and furthermore cases often involve lengthy and costly investigations.

The noble Lord, Lord Beecham, also referred to this point in relation to the Bribery Act 2010. The extent to which the current law of corporate criminal liability can be improved upon by employing the new “failure to prevent” formulation incorporated in the Bribery Act 2010—which the noble Lord’s amendment seeks loosely to emulate—is a matter for long-term examination. As I am sure the noble Lord, Lord Beecham, appreciates, the Bribery Act has been in force for less than 18 months. It is appropriate to allow the provision in the Act to bed down before we examine the extent to which the formulation could be usefully rolled out into other areas. However, I assure the House that the Government are committed to ensuring that investigators, prosecutors and the courts have the right tools to address financial and economic crime effectively, as is evidenced by Schedule 17.

DPAs have been specifically designed to ensure that corporate bodies are held responsible for alleged financial or economic wrongdoing on their part by providing an alternative means of disposal and a broader scope of sanctions. We remain satisfied that it is correct for the Government to focus on offering an additional route for holding to account organisations that are willing to engage in the process or otherwise face prosecution rather than on the basis of the liability itself. The noble Lord, Lord Beecham, also asked me to speculate on any level about the Sentencing Council and what it may arrive at. I am sure he appreciates that it would be totally inappropriate for me to speculate in that regard. In light of my explanations, I hope that the noble Lord, Lord Beecham, will withdraw his amendment.

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Lord Beecham: My Lords, I find that slightly disappointing. The Minister did not address the issue of incentivising the DPA process, which is precisely what Amendment 119A would achieve. However, as I indicated, this is a probing amendment. The probe does not seem to have gone in very far, but in the circumstances, I prefer to withdraw both it and the amendment.

Amendment 116DA withdrawn.

Amendment 116DB not moved.

Amendment 116E not moved.

Amendment 117

Moved by Lord Taylor of Holbeach

117: Transpose Schedule 17 to before Schedule 14

Amendment 117 agreed.

Amendment 118

Moved by Lord Taylor of Holbeach

118: Before Clause 26, insert the following new Clause—

“Immigration cases: appeal rights; and facilitating combined appeals

(1) In section 84(1)(b) of the Nationality, Immigration and Asylum Act 2002 (grounds of appeal: decision unlawful because of race discrimination etc by Northern Ireland public authority) after “1997” insert “or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act”.

(2) In section 99 of that Act (pending appeals lapse on issue of certificates)—

(a) in subsection (1) (list of provisions under which certificates may be issued) omit “96(1) or (2),”, and

(b) in the title, for “96 to” substitute “97 and”.

(3) For section 47(1) of the Immigration, Asylum and Nationality Act 2006 (decision that person is to be removed from the United Kingdom may be made while person can bring appeal) substitute—

“(1) Where the Secretary of State gives written notice of a pre-removal decision to the person affected, the Secretary of State may—

(a) in the document containing that notice,

(b) in a document enclosed in the same envelope as that document,

(c) otherwise on the occasion when that notice is given to the person, or

(d) at any time after that occasion but before an appeal against the pre-removal decision is brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002,

also give the person written notice that the person is to be removed from the United Kingdom under this section in accordance with directions given by an immigration officer if and when the person’s leave to enter or remain in the United Kingdom expires.

(1A) In subsection (1) “pre-removal decision” means—

(a) a decision on an application—

(i) for variation of limited leave to enter or remain in the United Kingdom, and

(ii) made before the leave expires,

(b) a decision to revoke a person’s leave to enter or remain in the United Kingdom, or

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(c) a decision to vary a person’s leave to enter or remain in the United Kingdom where the variation will result in the person having no leave to enter or remain in the United Kingdom.””

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, I shall speak also to Amendment 124, which is in the group.

The new clause to be inserted by Amendment 118 makes three separate changes to the legislation governing immigration appeals. The first two respond to amendments tabled in Committee by my noble friend Lord Avebury.

Subsection (1) of the new clause will reinstate a ground of appeal against an immigration decision on race relations grounds. Such a ground of appeal existed prior to the commencement of the Equality Act 2010, but was removed by the consequential amendments made under that Act. The Government’s stated policy remains that there should be a ground of appeal on race relations grounds and we have therefore brought forward this amendment to reinstate a ground of appeal on those grounds.

Subsection (2) of the new clause corrects an anomaly in Section 99 of the Nationality, Immigration and Asylum Act 2002 identified by my noble friend Lord Avebury in Committee. Sections 96 and 99 of that Act are designed to stop repeated appeals being used to frustrate the immigration system. Where the Secretary of State makes an immigration decision that carries a right of appeal, she may also certify that decision on the basis that the application relies on issues that were, or could have been, raised earlier or dealt with at a previous appeal. The effect of certification is to prevent an appeal being brought. However, there is a lack of clarity within the 2002 Act about the effect of certification on appeals that are already under way.

Section 96(7) of the 2002 Act states that a certificate has no effect in relation to an appeal that is already under way, but Section 99, which makes provision for the interaction between certification and appeals in progress, states that a certificate would cause the appeal to lapse. It is government policy that a decision to certify should not cause an appeal that is already under way to lapse, and the contradiction needs to be resolved so that the effect of the legislation is clear. This technical amendment to Section 99 of the Nationality, Immigration and Asylum Act 2002 therefore seeks to clarify that certifying a decision under Section 96 of that Act does not cause a pending appeal to lapse. I thank my noble friend Lord Avebury for bringing that issue to the attention of the House.

Subsection (3) of the new clause will clarify when a decision to remove a person from the United Kingdom can be given in relation to a decision to refuse to vary leave, to curtail leave or to revoke leave. As noble Lords will be aware, this House has considered this issue before. In 2006, the House supported an amendment which then became Section 47 of the Immigration, Asylum and Nationality Act 2006. It provided a power to make immigration removal decisions where a person has statutorily extended leave to remain in the United Kingdom. Statutorily extended leave is leave which continues where an appeal can be brought against a decision to refuse to vary, to curtail or to revoke leave.

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The intention behind Section 47 was that decisions should be made simultaneously, thereby allowing any appeal against removal to be heard at the same time as the appeal against the variation or curtailment decisions.

However, the Upper Tribunal in the recent case of Ahmadi concluded that secondary legislation prevents the simultaneous service of these two decisions. It concluded that the removal decision cannot be made until written notice of the decision to refuse to vary a person’s leave to remain has been given to that person. The impact of this decision is that Section 47 no longer works as it was intended, with the consequence that a removal decision can only be made after the initial appeal against a refusal to vary leave, or a decision to curtail leave or revoke leave, had been heard. The removal decision itself would then generate a second right of appeal. The effect will be to add in unnecessary, and indeed unacceptable, delays and costs into the appeals and removal process.

We are challenging the Upper Tribunal’s decision before the Court of Appeal but we have concluded that we should act swiftly to put the effect of Section 47 beyond doubt and restore the construction of that section which Parliament intended when enacting the 2006 Act. The consequential amendment to Clause 33 ensures that the provisions made by the new clause can be extended to any of the Channel Islands or the Isle of Man by Order in Council. I beg to move.

5 pm

Lord Avebury: My Lords, I am most grateful to the Government for considering the matters raised in my Amendments 148B and 148D in Committee, and for coming up with this new clause which addresses them—as the Minister has explained—in subsections (1) and (2). It appears that subsection (3) of the new clause deals with the problems identified by the Upper Tribunal in the case of Ahmadi, as my noble friend the Minister said, and also that of Adamally and Jaferi. In Ahmadi, Upper Tribunal judge Mr Lane said:

“It would clearly be possible for Parliament to amend s.47 of the 2006 Act, so as to enable the respondent to make simultaneous decisions ... Unless and until that is done ... In practice ... the present usefulness of s.47 is highly questionable”.

This is, I suggest, a good example of the complexity of our immigration law, and the risks incurred by getting the language wrong. If the original Section 47(1) of the Immigration, Asylum and Nationality Act 2006 is being amended, it has taken senior judges and Parliament six years to remedy the flaws that made this particular section unworkable so that it was impossible to remove the persons concerned who had no right to remain in the UK.

We do not even know whether it is indeed the original Section 47(1) that we are amending because the website that is intended to provide your Lordships with the text of Acts as amended carries the warning message:

“There are outstanding changes not yet made by the legislation.gov.uk editorial team to Immigration, Asylum and Nationality Act 2006”.

This is an unsatisfactory situation, which does not apply only in this instance, and I hope that my noble friend might say something about the steps being

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taken to ensure that legislation.gov.uk is brought up to date, so that your Lordships and another place know what they are being asked to amend.

Lord Lester of Herne Hill: My Lords, perhaps I may add to what my noble friend has just said. My wife is an immigration and asylum judge and from time to time she and her colleagues are sent for training in order to try to understand what the Home Office is producing. I hope that she does not mind my mentioning this, but she and her colleagues find themselves in a quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office. There are two people in the Chamber who will understand these amendments—one is the Minister and the other is my noble friend Lord Avebury. I do not understand them. For me to understand them I would have to read the three different Acts of Parliament, all of which are put in play in these amendments, and I would have to listen to and read again what has been said by the Minister. The net result would be that we will continue to have a network of regulations that it is quite impossible for ordinary men and women, including Members of this House, to understand unless and until the Home Office does what we have repeatedly asked it to do for the past many years—to consolidate the legislation into a single measure that can be understood by users, whether they be would-be immigrants, refugees or asylum seekers, or lawyers, NGOs or the public. At the moment it is almost incomprehensible and lacks, therefore, legal clarity. I very much hope that, when I do understand these amendments, what I have just said may be listened to by the Home Secretary and other Ministers who will instruct their officials, please, to come up with consolidating legislation that we can understand.

Lord Taylor of Holbeach: My Lords, I would like to comment on that because one of my responsibilities within the Home Office is regulatory reform. I agree with my noble friend that no area is more complex than the whole business of the Immigration Rules and the procedures surrounding them. The noble Lord, Lord Curry of Kirkharle, is aware of my involvement in this—indeed, the Better Regulation Executive is seeking to support the Home Office in this endeavour. I will bear in mind the comments of my noble friends because I am a great believer in the law being as simple and as clear as possible so that people can understand and operate it in the most effective way. I note very much what my noble friend has said. I hope he will understand that these amendments are designed to achieve the purpose of clarifying the law in areas of ambiguity.

Amendment 118 agreed.

Clause 26 : Appeals against refusal of entry clearance to visit the UK

Amendment 118ZA

Moved by Baroness Smith of Basildon

118ZA: Clause 26, page 23, line 26, at end insert—

“(6A) After section 50(2)(c) of the 2006 Act (procedure), insert—

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“(2A) In respect of any application or claim in connection with immigration (whether or not under the rules referred to in subsection (1) or any other enactment) the Secretary of State may make provision for the communication of an immigration officer with the applicant before a decision is taken in respect of that application or claim.

(2B) Provisions under subsection (2A) may include communication with the individual so as to obtain additional information relevant to their application or claim.”

(6B) Before the coming into force of this section, the Secretary of State must make provision for communication between an immigration officer and the applicant for the purposes of obtaining further necessary information not included in the original application, as provided for under section 50(2A) and (2B) of the 2006 Act.”

Baroness Smith of Basildon: My Lords, perhaps this is a timely amendment in the context of the debate that we have just had and the comments from the noble Lord, Lord Lester of Herne Hill, about having some sort of common-sense approach so legislation could be easily understood. I have called Amendment 118ZA the common-sense amendment, which I hope encourages noble Lords to support it. As the noble Lord, Lord Lester of Herne Hill, says, there is sometimes precious little common sense in how we look at legislation.

This amendment would require the Secretary of State to set in place a procedure to allow for entry clearance officers to communicate—I know that that is a radical step—with applicants during the application process, particularly if the applicant has not provided all the information needed in applying or if there is a need to clarify what may be a minor technical detail. The amendment was inspired by the details of the many cases of visa applications that have been sent to me by individuals over the past few months following debates we have had in this House, and indeed in Committee, on immigration issues.

Many of those who have contacted or written to me have been exasperated by their experience with the UK Border Agency. Whether or not their case has merit, and whether or not their case has been or will be successful, the bureaucracy that should be in place to create logic and order to the process can have the opposite effect. Ministers have said that one of the reasons for the changes they are proposing to the legislation is that applicants do not provide all the information that they should be aware of. However, the fact is that, for the vast majority of people who make such applications, there is confusion and a lack of clarity around the rules. This means that applicants can be refused on the most minor of technicalities or simply because they have not included a single document.

The Independent Chief Inspector of Borders and Immigration, John Vine, raised this very point in his review last year. His report, Entry Clearance Decision-making, noted that in 16% of the cases won on appeal that he reviewed, applicants had been refused on the basis of failure,

“to provide information which they could not have been aware”,

was required at the time of making their application. Even though Ministers consider that they should have been aware, clearly they were not aware. That is a definite example of the lack of clarity about what is required. For further evidence as to why clarity is required, in 33% of the successful appeals that John Vine reviewed, the entry clearance officer had not properly considered the evidence that had been submitted.

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Family members of British citizens who want to come over for a visit—perhaps for a wedding or to visit a sick or ailing relative—are being refused entry because of poor decision-making and a lack of clarity over the application process. The Government’s proposal to scrap the right of appeal leaves applicants without any indication of how they should amend their application the second time around, or even whether the same errors of omission or mistakes will continue to be made. That will do nothing to address the problems that the Government have identified. It is also difficult to see how it will reduce costs.

The Government have also conceded this argument. The former Minister for Immigration, now the Minister for Crime and Policing, the right honourable Damian Green, based the argument for scrapping appeals for family visas on the fact that 63% of appeals,

“are lost entirely because of new evidence introduced at the appeal stage”.

Obviously, if the applicant had been clear in the first place as to what was required, he or she would have submitted that information or evidence the first time round. Applicants do not want their application delayed or the uncertainty increased; they want to provide the accurate information. They have not provided it only because of a lack of clarity about what is required.

This problem has got worse. The success rate of appeals against family visit refusals has risen from 19% in 2004 to 37% in 2010. The latest report from the independent chief inspector about the backlog of 147,000 immigration and asylum claims at the UK Border Agency shows that at one point there were 100,000 items of unopened post, including 14,800 recorded delivery letters. This is a shocking state of affairs. It shows that the information being sent on is not being examined adequately.

I stress that I am not laying the blame on entry clearance or immigration officers. I have enormous sympathy with them; they are under huge strain. The Government have cut 5,000 staff from the UK Border Agency, so the workload of individual officers is increasing. The increasing backlog is putting on additional pressure. However, instead of seeking to deal with the chronic problems in the decision-making process, the Government have chosen to scrap appeals entirely. It could be argued that this is an easy option, rather than an effective one. One of the things that I was most struck by in the letters and e-mails I have received—and there have been a very large number of them—is that so many of those errors could have been sorted out relatively easily and more straightforwardly through better communication between the UK Border Agency and the applicant.

I have permission to give an example from one man who has contacted me. I will call him Mr H. However, I can give the Minister the details—he has had information from this gentleman previously. He is an intelligent and articulate British citizen, married to a lady from overseas. They could not understand why their application had been rejected, because they had passed the many hurdles that had been set for them, including the language test. They are now desperate to be living together as man and wife. It was only after I passed the information to the Minister’s office—for which I

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am grateful; he passed it on to the Minister for Immigration, and the noble Lord, Lord Avebury, also took up this particular case—that Mr H was told what information he had not included. He has since submitted that. However, the lack of clarity about what exactly was required meant that before he received that clarification—and he sent numerous e-mails to the UKBA asking for clarification of what was required—he scanned and sent hundreds of pages because he was so nervous about not including the correct information. He wanted to ensure that the right information was received but he could get no guidance from the UK Border Agency. He then wrote to me that the border agency had lost the appeal. I am pleased to say that it has now been found and he is hoping for a decision before 22 December, when he is returning home to the UK. He hopes that his wife will be able to return with him. Not only has that whole process involved a great deal of stress and worry for him and his wife, but think of the pressure on the overworked immigration officers who have had to consider his first application, deal with his inquiries about what was required for the appeal, and then consider the appeal, which apparently included hundreds of pages of unnecessary information because no one told him what information was required, and he was anxious so he included far too much. His frustration about the whole process is very clear.

Would it not have been easier and cheaper for all concerned if the entry clearance officer had been in a position to contact Mr H originally to let him know what information was missing and give him a certain number of days in which to supply it? That is why we call this a common-sense amendment—it would save time, money and stress.

5.15 pm

One of the reasons why so many people are so concerned about the scrapping of the appeal process is that by appealing the decision the applicant can keep the case alive with the UK Border Agency, and that often allows them to get the support of their Member of Parliament who can communicate with the Home Office on their behalf to get to the bottom of a refusal decision and why it has been made. The noble Baroness, Lady Hamwee, made this very same point in Committee:

“Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort”.—[Official Report, 4/7/12; col. 696.]

The amendment seeks to implement such a mechanism before appeals for family visit visas are scrapped altogether by the Government. I understand that they are looking to cut the cost of the process, but I am concerned that they are just taking the easy way out without dealing with the chronic problems crippling UKBA’s decision-making. The amendment seeks to ensure a fairer and more accurate system so that when appeals have been scrapped, applicants can feel confident that they will not be refused out of hand for simply failing to include one document or for a simple error on a form, but rather there will be a process by which they can talk to someone, or someone else can contact them and tell them what the problem is, and it can be far more easily resolved. I beg to move.

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Lord Avebury: My Lords, I agree with the noble Baroness. A great many of the refusals of applications for leave to enter have been due to misunderstandings about what information is required, and there ought to be a simple procedure for rectifying elementary omissions. I think that I recognise the particular case that she mentioned, because that person has already been in touch with me as well. He made every effort by sending numerous e-mails to the people dealing with the case to try to find out exactly what omission he was guilty of, but was never successful in establishing what further information he needed to provide.

Clause 26 removes the right of appeal against the refusal of a visa to visit family members, except where the appeal is brought on racial discrimination or human rights grounds. I had hoped that in the five months since we considered this matter in Committee, and in the light of the arguments that we advanced then, the Government would have had second thoughts about this clause. It is disappointing to see no sign of that on the Marshalled List.

I shall explain why we felt the need to return to this matter. The Government’s hostility to the right to family life is exemplified by the making of new Immigration Rules making it far more difficult and expensive for spouses and elderly dependent relatives to join heads of households in the UK, reducing the number by an expected 35%, over which the Immigration Minister is already crowing. Clause 26 turns the screw further by preventing appeals that would have been successful under the law as it now stands. I pointed out in Committee that if the argument for Clause 26 was that the number of appeals had risen to far greater levels than were expected when the right of appeal was restored in 2000, as was argued before the Home Affairs Select Committee, the obvious remedy was to get UKBA’s decisions right in the first place. Almost one-third of them are overturned, according to my noble kinsman Lord Henley in Committee, involving the taxpayer in a great deal of unnecessary expense. My noble kinsman said that taking away the right of appeal would lift the burden of processing 50,000 appeals from visa staff, but that was based on the assumption that officials would continue to reject bona fide applications at the same rate as they have in the past. We are told constantly that UKBA is undergoing processes of reform, which will enable them to be more accurate in the first decisions that they make.

After the case of Alvi, which your Lordships have discussed, the information required to be submitted with the visa application is now set out in detail in the rules themselves, so that in theory, there should be fewer cases where an applicant has omitted a particular document. However, considering the volume and complexity of the rules, which was mentioned by my noble friend Lord Lester on the previous amendment, it is inevitable that some applications will be refused for that reason. The Government suggest that persons who have omitted a document should put in a new application rectifying the omission at a cost of £78. That may be a trivial sum to my noble friends on the Front Bench, but it is a lot of money to a poor farmer in Gujarat or Sylhet.

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I take the point that a new application is less expensive and faster than an appeal; but where the decision-makers have made an obvious mistake, I do not accept that a genuine family visitor should have to pay twice, and suffer the complications affecting future travel, because the refusal has to be declared not only in the UK but to any other intended destinations to which the applicant may travel. Therefore, it is a blot on the person’s copybook that he will want and need to remove if he is to go anywhere without hindrance.

If a person wins the appeal, it is likely that the tribunal will make a costs order against the Secretary of State, so that the appeal will be free in the end. Moreover, if the refusal was due to disbelief that the applicant would return home at the end of the visit, it is only too probable that a fresh application would yield the same result. Only by appealing can the person attack the errors that led to the original refusal, and it was for that reason that I advised Mrs N from Beirut—whom I think was the person that the noble Baroness was talking about a few minutes ago and whose case I mentioned in Committee—to appeal as well as to ask for the original decision to be reviewed.

Therefore, I am afraid that the reasons that were given by my noble kinsman for thinking that an appeal may not be the best remedy for an unjustified refusal do not hold water. I hope that in the light of that consideration, there should be a simple process that would enable the applicant to lodge supplementary evidence supporting the validity of any document or statement which is challenged, rather than having to start again from scratch.

Lord Lester of Herne Hill: My Lords, many years ago, in 1967, I did the first case in Strasbourg against the United Kingdom: a case called Mohamed Alam & Mohamed Khan. Sir Roy Wilson had produced his report advocating an appeal system. It was as a result of the Strasbourg case and Sir Roy Wilson’s report that the immigration appeals system was first introduced —a system which has gone on until now. I strongly support the explanations and powerful speeches given by the noble Baroness, Lady Smith, and my noble friend Lord Avebury.

What is the situation at the moment? Instead of there being a proper process at first instance before there is an appeal—a process of proper decision-taking based upon the kind of common-sense approach that the noble Baroness, Lady Smith, is advocating—mistakes are made quite frequently. When the appeal comes to someone who is an immigration and asylum judge, often no presenting officer is produced by the Home Office to present the government case or there is no one to represent the applicant. My wife will come home at the end of the day and say, “I have now for the first time to take a proper decision myself as though I were doing it at first instance because I have nobody to help me on either side and I find that the initial decision is defective. I now, on appeal at great public expense, have to correct mistakes which should not have been made in the first place at first instance. The only way in which those mistakes can be corrected is by having an appeal system. It is the only safeguard”.

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The system now resembles the fairy story, The Little Prince, which noble Lords may remember, in which the boa constrictor swallows a sheep. One sees the lump of the sheep passing along the boa constrictor. The sheep is the process of taking decisions in this area. Instead of the process being properly determined at first instance and making the need for appeals rare, a great lump, the creature, passes along the snake, which leads to a first-instance appeal, an upper-tier appeal and judicial review.

The remedy is simply the common-sense one. One has at first level as much information as possible for a well informed decision. The advantage of the amendment tabled by the noble Baroness, Lady Smith, is that it would at least enable proper communication between the officer and the applicant or the applicant’s representative. I can see no argument against that, especially if we were to abolish appeals, which I very much hope will not be the case.

Lord Taylor of Holbeach: My Lords, I will address Amendment 118ZA in the name of the noble Baroness, Lady Smith. Before I do so, perhaps I may say that I understand that the contributions made by the noble Baroness and my noble friends Lord Avebury and Lord Lester are designed to build a more efficient system. In my response, I hope that I can demonstrate that that also is the Government’s intention.

The UK Border Agency publishes supporting documents guidance specifically for family visitors. It provides extensive guidance in several languages on the type of documents that customers should consider submitting. Perhaps I may elaborate on that. The UKBA provides guidance on how to fill in the visa application form. It is translated into six languages—Arabic, Chinese, Hindi, Russian, Thai and Turkish. Improvements are also being made to the online visa application process, which will be completed in May 2013. All that is available on UKBA’s website for those wishing to make applications. I should also tell noble Lords that if a refused application is received, the UKBA writes to the refusee to tell them what is missing from their documentation. I believe that this is a valuable way to make sure that the process is as user friendly as possible.

If the amendment in the name of the noble Baroness, Lady Smith, was successful it would put a significant resource burden on entry clearance officers to make inquiries with the minority of applicants—it is a minority of applicants—who do not provide sufficient information with their application. The Government have not been persuaded by the noble Baroness that this is right. Of course there is work to do on continuing to improve the application process. However, the onus must be on applicants to satisfy visa officers that they meet the requirements of the Immigration Rules and to ensure that they have prepared the application properly before submitting it.

5.30 pm

As drafted, the amendment would not just affect visit visa applications, but all applications, including those where the claimant still has the full right of appeal. That would place an unreasonable burden on the UK Border Agency and would have the effect of

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transferring the costs of incomplete applications on to the taxpayer. I hope that the noble Baroness will also be informed by my comments on the amendments proposed by my noble friend Lord Avebury.

It is important that I stress that the Government understand that family visit visas can help maintain family links, which is why we granted around 370,000 family visit visas in 2011. However, I do not agree that Clause 26 should be removed from the Bill. For a start, the appeal right is not of great benefit when people seek to come to the UK for specific family events. Based on the short-term nature of the visa, it seems logical that a large proportion of applications will be for specific family events. The appeal process at present can take up to eight months to be concluded, by which time that event is more than likely to have passed. In contrast, a reapplication procedure to the UK Border Agency will typically result in a decision within 15 days. Furthermore, every refusal is accompanied by a detailed letter, as I have said, which sets out the reasons for that refusal, and which can be addressed in a reapplication. As long as no deception was involved, each subsequent application is treated entirely on its own merits.

The amounts involved are considerable. For the taxpayer, removing the full right of appeal will result in savings of £107 million over 10 years from enactment. It will free up resource in the UK Border Agency and in Her Majesty’s Courts and Tribunals Service, allowing greater priority to be given to cases that have far-reaching impacts for the individuals involved and for society in general, such as asylum claims or the deportation of foreign criminals.

In Committee, and today, noble Lords have said that this appeal right should be retained because decision-making by entry clearance officers is poor. As my noble friend Lord Henley pointed out in Committee, we do not accept that this reflects our performance on family visa visit cases. Our analysis suggests that the vast majority—over two-thirds—of family visit visa appeals that were allowed were successful partly on the basis of new evidence submitted after the original application was made.

Quite simply, the tribunal makes a different decision based on different information. That is not a sensible or proportionate use of the appeals system, which is more time-consuming and protracted than a fresh application system. If applicants have additional information that they wish to provide in support of a visa application, they should reapply. The appeals system should not be used as a second application, not least as it is more time -consuming, as I have said, and can be more expensive.

Lord Avebury: Will my noble friend deal with the point I made? The exercise of the right of appeal is not only for the purpose of getting the decision reversed but to prevent there being a blot on a person’s record, which may seriously hinder their future ability to travel anywhere?

Lord Taylor of Holbeach: I do not accept that at all. If someone’s application to visit this country is refused, then I regret to say that it must be because either they have failed to fill in the application correctly or there

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are substantial reasons why they should not be allowed to make that visit. I cannot accept the premise of my noble friend’s argument.

The Government are not persuaded by the case for my noble friend’s Amendment 118A. To accept it would introduce a right of appeal for people who have, for example, practised criminal or other dishonest behaviour, while those who have acted honestly would not have an appeal. It cannot be right that that type of behaviour is rewarded.

Regardless of whether an application is refused, relying on a general ground of refusal, the applicant is free to re-apply setting out why the previous refusal was unjustified. All refusals on general grounds are authorised or reviewed by entry clearance managers before being served. If refused under general grounds, it is also open for an applicant to make a fresh application by providing new evidence which an entry clearance officer will take into account. A refusal under paragraph 320 of the Immigration Rules may also be challenged by a judicial review. Prior to making decisions, all entry clearance officers have to pass a three-week training course, part of which focuses on making decisions using paragraph 320 of the Immigration Rules. There is also an e-learning package specifically relating to the sub-paragraphs of paragraph 320 that may lead to an applicant’s future applications being automatically banned. This package is completed by entry clearance officers during their induction training on arrival at their decision-making post.

I think I have demonstrated that the process is thorough and that there will be considerable advantage to the efficiency of the system and, indeed, to applicants themselves if the Government’s proposals are approved. I trust that I have been able to satisfy my noble friend.

Baroness Smith of Basildon: My Lords, the Minister has always been generous with his time and courteous in his response, but I am sad that he is also disappointing. He seems to have relied on existing guidance being adequate and user-friendly. I thought that my comments that the genuine mistakes that are made could be more easily rectified than they are under the current process or the process proposed by the Government indicated that it is not quite user-friendly. No matter how many languages are used, if people do not understand what is required of them they cannot provide it. Perhaps the Minister thinks the guidance is adequate. If it were adequate, applicants would submit all the information required. There is no interest for applicants to make a mistake or not to supply something that they should.

It beggars belief and is against natural justice that the appeal process can be scrapped and that the Government are not taking steps to improve the original decision-making when the figures show that 37% of appeals are successful.

Lord Taylor of Holbeach: The allegation that we are not taking steps to improve the original decision-making has been refuted by what I said in my response to the amendments. I do not want to make an argument out of this issue, but the Government are very much

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focused on trying to ensure that the decision-making process is efficient and fair to applicants, as well as to taxpayers.

Baroness Smith of Basildon: I do not doubt that that is the Minister’s intention, but when we hear that the success rate of appeals against family visit visa refusals has risen from 19% in 2004 to 37% in 2010, that does not sound as if the system is getting more efficient, rather that the system is less efficient.

The point I am making is about removing the appeal process at that time. We heard from Sir John Vine about the huge backlog of cases that are currently in the system. There are 100,000 envelopes unopened, including 14,000 containing recorded delivery information. I think that our amendment is a common-sense approach. Remarkably, even the noble and learned Lord, Lord Lester of Herne Hill, who takes a legal approach to these things, agrees with me on this point. I am seeking to be helpful to the Minister and the Government. He may think there are times when I am not, but on this occasion I am seeking to be helpful.

The Minister spoke of the letter which is sent to applicants on reasons for refusal. That reason for refusal may be one very minor, technical matter that can easily be resolved via a phone call. I am extremely disappointed by the Minister’s response. I hope he will take this away and consider further the points that I have made. I beg leave to withdraw the amendment.

Amendment 118ZA withdrawn.

Amendments 118A and 118B not moved.

Clause 27 : Restriction on right of appeal from within the United Kingdom

Amendment 118C

Moved by Lord Avebury

118C: Clause 27, page 24, line 17, at end insert—

“(4) This section does not apply if—

(a) the person concerned is stateless,

(b) the person concerned has previously made an asylum claim or a human rights claim and been granted leave on that basis, or

(c) the person concerned asserts in his or her grounds of appeal an asylum claim or a human rights claim.”

Lord Avebury: My Lords, leaving out this clause would ensure that a person who is outside the country when his or her leave is cut short by the Secretary of State retains the right to return to the UK within the time limit for appeal and thus the right to exercise an appeal in country. At issue are cases where a person’s leave is cut short by the Secretary of State under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 when he is outside of the UK at the time of the refusal.

It happens frequently and not by accident that the Secretary of State takes advantage of a person’s absence to issue the notice, knowing that that person will not be able to return to the UK to exercise the right of

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appeal. At the moment, that person has an in-country right of appeal against refusal. The courts have had to consider what happens when an individual is outside the UK at the time of the refusal. As I say, these circumstances will not arise by chance. The Secretary of State will have waited until the person is outside the country to serve the notice cancelling their leave. The courts have held that the person has the right to return to the UK and to lodge an appeal within the time limit for appealing if he had been within his previous leave to remain.

Clause 27 provides that such a person will be given no opportunity to return to the UK, reversing the decision of the court in the case of MK. I referred to this case in Committee so there is no reason to repeat the details now. I simply remind your Lordships that MK was a Tunisian refugee in the UK, but was in Italy when his status was revoked by the Home Secretary. His right to contest that decision in the UK was upheld by the court. It is that decision which is reversed by Clause 27.

The clause has been amended to restrict the Secretary of State’s power to exclude an in-country right of appeal to those cases where she exercises the power before the person brings his or her appeal. However, this does not address the fundamental injustice in the clause. In Committee, my noble kinsman said that it was,

“wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom”.—[

Official Report

, 4/7/12; col. 719.]

He ignored the fact that a person stranded abroad without access to legal advice and unable to consult face-to-face with his lawyers or to approach witnesses who might testify on his behalf is generally going to be at an overwhelming disadvantage in challenging the Home Secretary’s decision. My noble kinsman said that legal aid would remain available for most applications for judicial review of immigration decisions, and I would be grateful if the Minister would confirm that it will be available in these cases as well.

I mentioned also the Court of Appeal’s finding in the case of MK that the right to an in-country appeal was “valuable” and the fact that pursuing an appeal that turns on character may depend critically on how the litigant appears in court. I submit that it is wholly unreasonable for persons who may have resided in the UK for many years to be put in this position. We are not seeking to undermine what my noble kinsman referred to as,

“the operational integrity of the Home Secretary’s power to exclude an individual from the United Kingdom”.—[

Official Report

, 4/7/12; col. 721.]

We simply seek to ensure that in exercising this power to change someone’s life drastically for the worse, the Home Secretary must abide by the rule of law.

If the repercussions of Clause 27 are serious for those to whom it applies in general, they would be exceptionally so for stateless persons, refugees and persons granted humanitarian protection. Therefore, retaining for these persons the right to return to the UK within the time limit for appeal and to exercise an appeal in country is only fair. They will find themselves,

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and possibly their families also, stranded outside the UK and with no other country to which they can legally resort in safety if this clause goes through.

My noble kinsman said in Committee in response to this amendment that it could provide every individual refused under the provision with an in-country right of appeal, as they would merely need to raise human rights or asylum grounds in their appeal. Proposed new subsection (4)(c) would have this consequence, but of course the appeal would succeed only if the asylum or human rights claim was found on appeal to be justified.