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8 Nov 2010 : Column GC1

Grand Committee

Monday, 8 November 2010.

3.30 pm

The Deputy Chairman of Committees (Baroness Harris of Richmond): My Lords, before the Minister moves that the first statutory instrument be considered, I remind noble Lords that in the case of each statutory instrument the Motion before the Committee will be that it do consider the statutory instrument in question. I should perhaps make it clear that the Motions to approve the statutory instruments will be moved in the Chamber in the usual way.

Freedom of Information (Time for Compliance with Request) Regulations 2010

Copy of the SI
Copy of the Report

Considered in Grand Committee

Moved By Lord McNally

The Minister of State, Ministry of Justice (Lord McNally): My Lords, perhaps I may say to my noble friend Lady Harris what a pleasure it is to make my debut ministerial statutory instrument speech in the Moses Room under her chairmanship.

The purpose of these regulations is to allow academies more time to respond to freedom of information requests to take account of school closures, for example during school holidays.

The Freedom of Information Act gives any person the legal right to request access to recorded information held by a public authority. The Act applies to over 100,000 public authorities, and last year central government-monitored bodies received more than 40,000 requests, which is a 16 per cent increase on the number received the year before. Under the Act, freedom of information requests must be responded to promptly, normally within 20 working days. It is right that people making requests should receive a timely response.

However, there are limited occasions when the deadline is impractical. That is why regulations have previously been made in 2004 and 2009 to provide maintained schools in England and Wales, and schools and pupil referral units in Northern Ireland, with an extension to the usual 20 working-day time limit in dealing with FOI requests in certain circumstances.

Other organisations that have been provided with an extended time limit to respond to requests for information include: archives, to deal with requests for information contained in a public record that has been transferred from a closed file, because one of the freedom of information exemptions applies; operations of the Armed Forces requests, where information needs to be obtained from front-line units of the Armed

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Forces and they cannot be reached for operational reasons; and requests involving information that is held outside the UK and will take time to retrieve.

The Academies Act 2010 extended the Freedom of Information Act to proprietors of academies. Like other schools, academies can also face difficulties in answering requests received during periods of closure and other times when they are unstaffed. This is a particular problem during school holidays, which can be around six weeks long and therefore longer than the 20 working days normally permitted for a response.

Without this extension in place, academies may find themselves in a position whereby they will unavoidably be unable to comply with the time limits provided for under the Act, and I am sure that noble Lords will agree with me that this is neither fair nor sensible. These regulations will ensure that proprietors of academies have the same reasonable allowance in respect of the time limit for responding to requests as other schools in England, Wales and Northern Ireland that are subject to the FOI Act.

If the regulations are made, proprietors of academies would not have to count any day that is not a school day, such as during the school holidays, towards the period of 20 working days within which requests must be answered. However, under the regulations, requests must be answered within a maximum of 60 working days, including any period of closure.

However, these regulations do not mean that academies can delay responding to requests. They will be required to answer requests promptly. Where it is possible for an academy to respond earlier to a request, the response cannot be delayed until the end of the extended time limit. I beg to move.

Lord Campbell-Savours: My Lords, the Minister said that academies cannot delay; I wish to argue that they can delay, and I will set out the circumstances in which they can and which cause me concern about these regulations.

I am a regular user of the freedom of information legislation that applies to all public bodies-I have a number of applications outstanding with both government departments and local authorities at the moment-and I ask the Committee to recognise that while academies fulfil the same function as maintained schools in the state sector, they are different in that they comprise a greater element of independence, and it is that independence and the influence of that independence on the management of such schools that worries me.

Under existing legislation, educational institutions can be quite tardy in dealing with freedom of information applications. Unlike government departments and local authorities, whom I find fairly reliable, educational institutions can often be difficult. The problem with these regulations is that they are not accompanied by safeguards. In my view, this will lead to an abuse of the system. If evidence of abuse is needed, we need do no more than consider the report of the Campaign for Freedom of Information, which, when reporting on delays by the Information Commissioner in completing investigations, found that the completion of 46 per cent of the cases it handled were delayed by one or two years, 25 per cent by between two and three years, and 5 per cent by more than three years. When it wrote its

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report, one case showed a delay of three years 9 months after the Information Commissioner had dealt with the report. I understand that efforts are being made by the Information Commissioner to tighten up on these delays, but what we are doing today may hinder applications unless proper safeguards are introduced.

Let me give an example of what happens when educational institutions decide they want to delay and deny the public information they should have in the public interest. A maintained school within the United Kingdom, which could easily become an academy, decided upon a course of action which we will describe for the purposes of the debate as its project. The project was opposed by a number of expert organisations, one of which took the school to court, and huge legal fees were paid to fund the case of the expert objector. An MP took an interest in the case in the other House, advised against the action and used freedom of information legislation to unravel the affair. On 20 February 2008, the MP wrote to the school to establish the cost to the school of defending its action in proceeding with the project, the source of the funding, the role of the local authority, what legal advice had been given to the school, and the role played by the head and the governing body.

We should remember that these regulations will extend the period that schools have to reply to questions under freedom of information legislation. The school replied and refused to provide the information. On 15 March 2008, the MP applied under freedom of information legislation; the school still refused. On 15 May, the MP wrote to the school asking for an internal review of the decision to refuse to comply. There was no reply from the school. On 29 July 2008, the MP approached the Information Commissioner. On 11 September 2008, 44 days later, the Information Commissioner replied, saying that he had asked the school to issue a review within 20 days. On 23 October, a further 42 days later and eight months after the original request, the school revealed that it had spent £76,000 on legal costs to that date. The school carried on refusing to answer the other questions. Perhaps now the relevance of the 60 days may be dawning on Members of the Committee.

In March 2009, the MP made a fresh application, asking further questions under FOI. The school again refused to respond. On 16 April 2009, the MP wrote again to the school under FOI; the school later claimed that it had lost the letter. The MP sent a copy of the letter to the school; the school replied but again failed to answer the questions. In May 2009, the MP wrote to the school offering to extend the deadline by 20 days. On 27 May 2009, the school replied with evasive answers. On 9 June 2009, the MP wrote to the school, asking for an internal review of the decision to refuse to comply. On 6 July 2009, the school replied with evasive answers, hiding behind spurious exemptions.

On 15 July 2009, the MP wrote to the Information Commissioner to complain about the refusal to answer questions. Three months later, on 8 October 2009-one and a half years after the original application and three months after the complaint to the commissioner-the school wrote to reveal that £170,000 had been spent on legal costs. The school still refused to answer

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the other questions. The Information Commissioner then gave the school until 4 November to answer questions. On 23 November, the Information Commissioner stated: "Unfortunately, the authority"-that is, the school-

A month later the Information Commissioner made a further statement, saying that,

"it appears that the authority still does not fully understand the role of the ICO. The Commissioner has today therefore issued an Information Notice to the Authority ... compelling a Public Authority to provide the Commissioner with a copy of the disputed ... information. The Authority has 30 days ... from the date of the Notice to comply. Failure to comply may result in the commissioner making written certification of this fact to the High Court ... I do however hope that that will not prove necessary".

That was nearly 11 months ago.

In May 2010, the Information Commissioner revealed that a freedom of information notice to the school, dated 17 December 2009, had to be cancelled on legal advice because it had been addressed to the school, as against the governing body of the school. On 9 July 2010, the Information Commissioner wrote to the MP to state that the corrected information notice was being appealed by the school. In August 2010, the tribunal dismissed the appeal. The school then offered the Information Commissioner half-answers to the questions asked, which the Information Commissioner regarded as inadequate. The Information Commissioner then gave the school 14 days-as I understand it, to 21 October-to answer. So, it has taken two and a half years to get precisely nowhere on what I regard as perhaps the most significant piece of legislation of the Labour Government in the past 12 years. The school refused to answer the questions, making a mockery of the Act.

Today, we are considering giving institutions, which will be the subject of greater private sector influence, an additional 60 days without building into this new power for academies-at least, it is available in the maintained sector-any safeguards to prevent what I referred to happening again in the future. Although I am in favour of the 60-day period, I believe that the Government should now review this legislation with a view to reconsidering the powers available to the Information Commissioner for enforcement of the law. We cannot allow schools and other bodies to make a mockery of the legislation in the way that I have described.

3.45 pm

Baroness Gale: My Lords, first, I congratulate the Minister on making his debut on statutory instruments. It is good to be working with him again. As he may recall, in the late 1970s when I was working in the Labour Party office in Cardiff and the Minister was in No. 10, we often had little chats about what the Prime Minister would be doing when he came to Wales. It is good to be working with him again, although I do not think that at the time either of us thought that we would be working on opposite sides of the Chamber.



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I thank the noble Lord for his remarks and for his explanation of the statutory instrument. My noble friend Lord Campbell-Savours has raised some very interesting points, to which I am sure the Minister will reply. However, I believe that the safeguards are there in that academy proprietors remain subject to the obligation to respond promptly. If a request can be answered in less than the maximum period allowed, they must do so, and the SI can be reviewed by the Information Commissioner if there is a significant increase in the number of complaints from requesters.

With those assurances, I am happy to say that we agree that the statutory instrument is very sensible. It will make the workings of this section of the Act clear and understandable to all concerned. As it is so straightforward, we therefore have no objection to it.

Lord McNally: Oh yes, I remember it well. It was a very happy period indeed and a clear demonstration that Governments can get through very difficult economic problems.

I am very grateful for the intervention of the noble Lord, Lord Campbell-Savours, which was made with his usual thoroughness. I am unable to comment on individual cases but I shall read very carefully the Hansard report of this debate and send it to the Information Commissioner. As one who was very much a supporter of the Freedom of Information Act, I want to see it work. I am therefore very grateful for the noble Lord's contribution because it is important that the Information Commissioner has the capacity to enforce the power.

On the backlog, I saw the Information Commissioner recently and he was able to assure me that significant progress was being made. I think that there was a period when his office did not deal with matters quickly enough, but a real effort has been made to speed things up and I think that we are now well on track. In addition, in November and December the Department for Education and Skills is holding a training event for academy principals and chairs of governing bodies to acquaint them with their responsibilities under the Act. Written guidance on handling requests will also be provided to the academies. I am grateful for the support of the Opposition and for the contribution of the noble Lord, Lord Campbell-Savours.

Motion agreed.

European Communities (Definition of Treaties) (Central Africa Interim Economic Partnership Agreement) Order 2010

Copy of the SI
Copy of the Report

Considered in Grand Committee

3.52 pm

Moved By Baroness Wilcox



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The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, the economic partnership agreements, or EPAs, with Cameroon and Côte d'Ivoire set in place a secure trading arrangement between these countries and the European Union to promote development-friendly trade. The arrangement is compatible with the World Trade Organisation's provisions.

The agreements mean that Cameroon and Côte d'Ivoire will receive duty-free, quota-free access to European Union markets. Without them, these countries would face tariffs on up to 25 per cent of their exports, including on industries critical to their economies such as bananas and cocoa.

The EPAs allow Cameroon and Côte d'Ivoire to remove their own tariffs gradually, over 15 years, and each contains safeguards enabling them to protect infant industries and prevent import surges. However, in accordance with the wishes of Cameroon and Côte d'Ivoire, the EPAs do not include provisions on services, investment, procurement, intellectual property or other "deeper integration issues".

Each agreement also contains a chapter on development, ensuring that Cameroon and Côte d'Ivoire receive the development assistance they need to make the most of the opportunities created by the EPAs. As a first step, in September 2009 the European Union signed off a €97 million package for Cameroon to accompany its EPA and to help boost its economy and trade activities. The UK is committed to monitoring this money closely to ensure that it is spent wisely and achieves the maximum impact on poverty reduction.

The benefits generated by duty-free, quota-free access to the European market and by improved rules of origin are the areas in which the EPAs will most quickly bring benefits. Without them, for example, the tariff on banana imports from Cameroon and Côte d'Ivoire would be €148 per tonne.

In the longer term, the biggest benefits will come from the increased trade and investment that will flow from Cameroon and Côte d'Ivoire removing their own tariffs and moving towards more open economies.

No nation can achieve prosperity by closing its borders to trade. Indeed, the World Bank's 2008 Global Monitoring Report calculated that removing all trade tariffs could reduce the headcount poverty index by 5 to 6.5 percentage points over a 10-year period. A 1 per cent increase in Africa's share of world trade would generate about $70 billion of additional income annually, which is about three times the total aid that Africa currently receives. So by removing tariffs and promoting free trade, the EPAs will deliver lasting benefits to Cameroon and Côte d'Ivoire, and to Britain.

To secure these gains for Côte d'Ivoire and Cameroon, we need to ratify these two EPAs. By agreeing to the orders today, the Committee will allow us to proceed without delay.

Lord Young of Norwood Green: My Lords, I welcome the Minister's opening remarks on the orders. She will be reassured that we largely welcome the agreements. The trading agreements are designed to support parts of the African economy and should benefit workers in

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training and employment generally. In turn, businesses and workplaces will be made safer and more efficient. As the Minister said, economic partnership agreements are intended to be broad agreements that help to build regional markets and diversify economies in the African, Caribbean and Pacific regions, before opening up the international benefits of increased, balanced and sustainable trade between the regions. They will change our relationship from one that offers tariff preferences to one that builds lasting and more efficient regional and international markets for the ACP regions.

The ACP economies are too small to go it alone and regional integration has the potential to boost local trade and to create larger markets, which will attract trade and investment. Eliminating the barriers between neighbouring countries and creating real integration favours trade exchanges and boosts economic growth. It also creates bigger markets that are more attractive to investors, and facilitates trade with landlocked countries. We have already heard from the Minister about the benefits of trade with Africa overall.

I have no criticisms of these agreements, but I would appreciate clarification from the Minister on a number of points. First, on the central Africa agreement, noble Lords will note that Cameroon is the only central African country to have signed the document. Its strong links with the EU are well documented. It is estimated that 61 per cent of its exports go to the EU and 56 per cent of its imports come from the EU. Will the Minister confirm that the agreement will strengthen the quality of the Cameroon economy, which might benefit its trade dealings outside the EU? Does she expect the agreement to be superseded by one that includes the seven countries of the Economic and Monetary Community of Central Africa and, if so, when? Are there plans for the agreement, or any future agreement, to be extended to cover not only goods but services? The Minister has spoken of the specific requests of Côte d'Ivoire and Cameroon that these be goods-only arrangements, but are there plans for wider arrangements that include services?

Obviously there are gains to be had when the less developed members of such trading arrangements gain fairer access to larger markets such as the EU. However, that is not the only prize. There is an opportunity to improve access to the larger, more developed markets of fellow African continental members. Does the Minister agree that that in itself is a big prize in expanding the membership of the central Africa group?

Finally on this agreement, is the Minister satisfied that the gradual reduction of tariffs on goods entering from the EU, such as vehicles, chemicals and power generation equipment that are not manufactured in Cameroon, will reduce production costs and product prices in the Cameroon economy quickly enough?

Will the Côte d'Ivoire agreement be a stepping stone to securing a larger agreement that encompasses more of western Africa? Whereas the EPA covering Cameroon has been established in preparation for a possible expansion under the central Africa banner, I am concerned that the Côte d'Ivoire EPA is restricted to just the one country. Will the Minister update noble Lords on the progress of the discussions on securing similar agreements with Côte d'Ivoire's neighbours, in

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particular Nigeria and Ghana, but also other members of the Economic Community of West African States? When might we expect to see further developments towards a regional-based agreement for west Africa?

Countries such as Côte d'Ivoire are using the agreements as a gateway to larger markets among their African neighbours, which will allow them to grow their national industries before looking to other international markets in a significant way. Does the Minister see such goals as significant in the domestic economy of Côte d'Ivoire? Are those goals hampered by this being a single agreement with Côte d'Ivoire, without any additional African benefit? As with the Cameroon agreement, will the Minister confirm whether he has ambitions for an economic agreement covering not just goods but services? Does she feel that the reduction in the tariffs over 15 years on certain manufactured products that could drive the Côte d'Ivoire economy is being done over an appropriate period? We have heard about the case of the central African EPA, and the Côte d'Ivoire agreement will be negligible in its impact on UK imports and investment.

It would also be useful to know when the Minister last met the relevant trade Ministers from each country to ascertain what assistance they need to make best use of these agreements. It is vital that the interests of Cameroon and Côte d'Ivoire are central to the legislation. I am keen to find out whether the Minister's department works closely with colleagues in DfID on such matters.

4 pm

Lord Dykes: My Lords, I, too, wish to thank my noble friend for presenting these orders for approval and join in the support for the two orders. I thank the opposition spokesman for his points and questions. I associate myself with some of them in respect of future arrangements.

The European Union is making process in doing deals that are equitable for these countries, which are still very poor, but it does take time. The Lomé convention had many imperfections, but at least some progress was made. It was succeeded by the Cotonou agreement, which made still further strides, but I think the EPA system is better, because it can deal with segmental differences and the isolation of a particular product in more detail, which is a good thing. I, too, would be interested to speculate with the Minister whether other countries, not just Cameroon, will join in the central African part of the first order. A large number of countries were involved, and it would be interesting, if the Minister had time, briefly to enunciate why those negotiations with other countries did not go ahead and why they decided not to pursue that. There is still some feeling in west Africa that these agreements are inherently unfair and unbalanced. That is an over-exaggerated impression; the European Union is definitely trying to do something more for these countries, genuinely and sincerely-but there are still those anxieties.

Will the Minister, if she has time, speculate a little, although not too long, on the political situation in both countries? Unrest can of course delay economic progress. On the Côte d'Ivoire order, I presume that having the same list of products that will come from the EU as imports into Côte d'Ivoire, as in the central

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Africa agreement, is a sign of making these negotiations uniform. Presumably in future there will be significant differences. In the mean time, we wish these countries well in their development. They are not really significant for United Kingdom exports, and for imports to them. We are very marginal in both those places. Whether that is a good idea or not I do not know, but there has been a habit for it to be dominated by the French and, to a lesser extent, the Germans, Dutch and Belgians. I hope that in future there will be more British business activity in these countries and the rest of west Africa. I agree with the opposition spokesman that an all-territorial agreement for all the countries would be a very good achievement in future.

Baroness Wilcox: My Lords, I am delighted to see the noble Lord, Lord Young, in the Room. I seem to follow him on all sorts of things that he has started, and which I finish. He hit me with a flurry of questions, most of which I will not be able to answer this fast, as he will know from being in this Room and trying to do so. However, I may be able to cope with one or two. He knows this subject very well, and most of his questions seemed to seek reassurance that we will follow the line that he has taken before.

In response to a question asked by the noble Lord, both the Cameroon and the Côte d'Ivoire EPAs are intended to be stepping stones to full regional EPAs. Côte d'Ivoire is part of the western Arica grouping, and, with the other nations in the group, it continues actively to negotiate a regional goods-only EPA. The negotiations are moving slowly, but some progress was made in 2010 and they could be concluded in 2011. Cameroon is part of the central Africa grouping, as the noble Lord will know. That grouping contains a large number of fragile states, such as the Democratic Republic of Congo, for which signing an EPA with the European Union is not a priority at this time. The Cameroon interim EPA is therefore likely to remain in place for several years, but the European Commission stands ready to negotiate a regional EPA, and, when the region indicates that it is ready, we will be able to move.

The services will come later, as the United Kingdom must negotiate at the pace of the developing countries. They must feel comfortable with the pace at which we are working and not intimidated or pressured by us, so that they have a chance to get used to systems that we ourselves find easy to use.

In response to the noble Lord, Lord Dykes, Cameroon and Côte d'Ivoire will liberalise gradually over 15 years. As to the political situation, the European Union has pledged more than £500 million to help to implement the agreements. This will help to overcome the difficult political situation and, we hope, will provide greater political stability. As I said in my opening remarks, this is the right way to develop with these countries so that they do not feel pressured by us but, at the same time, free trade is extended across the world, particularly with Côte d'Ivoire; Cameroon; the South African Development Community; the Pacific, eastern and southern African regions; and so on. It all takes a great deal of time, as the noble Lord, Lord Young, knows very well, but I think that it will be worth while in the end.



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I do not think that I have picked up anywhere near as many questions as I have been asked but I know that we will reply to noble Lords in writing unless there is a very pressing matter that I have not managed to answer now. I thank all noble Lords for their contributions today and commend the orders to the Committee.

Motion agreed.

European Communities (Definition of Treaties) (Côte d'Ivoire Economic Partnership Agreement) Order 2010

Copy of the SI
Copy of the Report

Considered in Grand Committee

4.07 pm

Moved By Baroness Wilcox

Motion agreed.

Disabled People's Right to Control (Pilot Scheme) (England) Regulations 2010

Copy of the SI
Copy of the Report

Considered in Grand Committee

4.10 pm

Moved By Lord Freud

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, I can confirm that, in my view, the statutory instrument is compatible with the European Convention on Human Rights. I am very pleased to take part in today's debate and commend these regulations on right to control. This is a groundbreaking advance, which for the first time gives disabled people a legal entitlement to choice and control over the public services they receive.

When noble Lords debated the Welfare Reform Bill in this House last October, I noted just how important choice and control are to all our lives. There is an emerging thesis that happiness, quality of life and fulfilment depend on our ability to contribute on our own terms and be valued for that contribution. Like anyone else, disabled people need to be empowered to be in control of their own lives. They should have the same opportunity to be involved in a society that recognises them as individuals who contribute, rather than as people defined by disability. So I am proud that, with right to control, we have developed a policy that commands such broad support.



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I am happy to congratulate the noble Lord, Lord McKenzie, for the work that he and his colleagues have done to bring the policy to this stage. I also pay tribute to the many people who have been involved in laying the groundwork for these regulations. A great number of organisations and individuals have expended a huge amount of time and energy in shaping this legislation. However, it would be remiss of me not to reserve a particular mention for the noble Baroness, Lady Campbell of Surbiton, who has been such a potent advocate for right to control. Her work, and that of the advisory group she chairs, has been critical in shaping this policy and advising the Office for Disability Issues. Even then, we could not have come so far without the support and co-operation of the many disabled people and user groups who have been crucial in ensuring that we get this right. This sum of knowledge and expertise is reflected in the clear insights and attention to detail that we see in the regulations under debate.

Right to control represents an important landmark but it is one stage in a longer journey. The coalition Government have a broad vision to decentralise, empower individuals and cut bureaucracy. Right to control fits well with our plans to allow local authorities, communities and individuals to manage their own destinies with less interference from the centre. By shifting the focus from what people need-or what somebody thinks they need-to what they want, we are working towards, first, services that meet the aspirations of disabled people, as well as their needs; secondly, services that are planned and designed around the disabled person; and, thirdly, a diversity of services that help disabled people choose the right package for them. In short, these are personalised and responsive services.

The right to a personal budget and, ultimately, the right to take the cash and buy services directly is the mechanism for empowering disabled people. Too many people are currently offered services that are designed for the convenience of the provider, not the customer. Too many people still find that their own complex needs are not fully understood and catered for, despite the best efforts of the local social care department. Right to control will put the people who are the experts in their own care firmly in the driving seat when it comes to putting together a package of support. I fully recognise that some disabled people will still need support and advocacy to discover what is available and what they can aspire to. But I want to be clear that right to control is designed for all disabled adults and our trailblazers will deliver the guidance and support needed to ensure that everyone can exercise that right.

4.15 pm

Right to control represents a transformational moment for disabled people. It supports Article 19 of the UN Convention on the Rights of Persons with Disabilities-the right for disabled people to live independently and be included in the community. As such, the trailblazers represent an important catalyst for change; they will act as a spur for culture change within public bodies, putting the emphasis on the disabled person and responding to their needs and aspirations. They will drive culture change among providers, ensuring that

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services are designed for the convenience of the customer, not the convenience of the provider, and inspiring change for disabled people and their families as they see what can be achieved and decide how to further their own progress. As a result, disabled people will finally own the choices about practical issues such as who helps with personal support, how they get supported into employment and who adapts their homes.

The trailblazers are aimed at delivering a seamless customer experience. The programme should also help us to see what works and what does not, as we strive towards more streamlined and interconnected systems. We have a real opportunity here to strengthen the link between local authorities, Jobcentre Plus, service providers and third-party organisations, especially user-led organisations. If we can capture the lessons effectively, we will go a long way towards finding the best delivery channels matched with the best advice and advocacy.

I hope that as we work towards a full evaluation in two years' time, the trailblazers will help us find the best way to optimise a comprehensive right to control package. I therefore seek approval for these regulations and commend them to the Committee.

Baroness Campbell of Surbiton: My Lords, I also really welcome the regulations. I, too, pay tribute to the noble Lord, Lord McKenzie, for introducing them; it was a very inspirational thing to do. It was risky and I think it will pay great dividends in the future. How nice that all sides of the Committee can support this initiative.

The right to control is, as the Minister said, a significant landmark for disabled people. For decades, disabled people have campaigned for the right to have choice and control over our lives. A small thing, you may say, but it is something that we have not been able to take for granted in the way that non-disabled people have. Now we have equality.

The regulations take us a long way towards the goal of choice and control. If implemented well-and they do need to be implemented well-they have the potential to transform the way we live. By exercising the right to control, disabled people will inevitably become more confident in taking personal responsibility for their role in the community and family life. It will enable greater freedom to plan and pursue educational, work or volunteering opportunities. In short, disabled people have at last been put in the driving seat of their own destiny. What is more, this is a legal right, enshrined in legislation-not a gift or a charitable favour, for which one must be grateful, but a right. This is a real step forward for disabled people.

As the Minister said, one of the key articles in the UN convention on the rights of disabled people is Article 19. It concerns the right of disabled people to live independently and be included in the community. As noble Lords will be aware, the UN convention states clearly that disabled people should have and enjoy the same human rights as everyone else. It sets out obligations on states to ensure that those rights are met. The right to control goes straight to the heart of Article 19 and provides a vehicle to realise this right and, consequently, goes a long way towards implementing the convention. That is terrific.



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In addition, the way in which the right to control legislation has been conceived and developed accords well with the UN convention duty on states to involve disabled people in the planning and implementation of such rights. Both the previous Government and now the coalition Government have involved disabled people at every stage of developing the right to control legislation and now its implementation. I should know because I am the chair of the advisory group of disabled people and experts in independent living who helped to shape the legislation, proposals for the trailblazers and the evaluation. Everything about us was discussed with us during this process. The seven trailblazers are following the same model of co-production at a local level. This will ensure that the experience and knowledge of disabled people permeates how the right to control continues to be delivered and developed.

The way in which we have developed the right to control over the past two years, as an advisory group and on the ground with our buddies, has taken the personalisation agenda a step further and set a new dynamic support service culture whereby disabled people, who once had to apply to five or six different agencies for support, will now engage with one support planning process. This is something for which disabled people have been asking for a long time. A new public support service where disabled people will, again by legislative right, decide for themselves how best to use their resource allocation is at the heart of this process. We will be able to devise creative solutions of our own for our own support, and exercise as much control in the commissioning of the outcome as we feel able. If you do not feel that you can control everything, you do not have to; you can have a plurality approach.

I know that some noble Lords have concerns that some disabled people may not be able to take that kind of control over their lives in this way. However, I can reassure them that on the advisory group we looked at this issue and made sure that the right permits flexibility and will be well supported throughout the process. Flexibility, of course, is the key. Disabled people can ask for a particular service to be provided or take a mix of existing services and a direct payment, or, in my case, use a direct payment to purchase all their support themselves and be totally 100 per cent in control. However, I know that most disabled people are not control freaks like me.

There will be support and advice for those who want their payments to be managed by a third party, and advice, training and guidance for people who want to employ personal assistants. Advocacy and support will be an integral part of the right to control. I am particularly keen to see how well the trailblazers fulfil this important part of the right-to-control culture and keen that we scrutinise it as it develops.

Peer support is incredibly powerful in demonstrating to disabled people what can be achieved. It is another important part of trailblazer activity. Before I began employing my personal assistants more than 20 years ago, I needed to observe how other disabled people managed their employees and I learnt from their mistakes-as I am sure others have learnt from mine.

We all have dreams or expectations from life; disabled people are no different. Delivered successfully, a right to control will change for ever the way in which the

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state responds to our needs. I am confident that, by transferring power from the state to the individual in this way, we will overturn decades of low expectation and witness a transformation in people's capability and well-being.

However, I recognise that this is an ambitious project. We are overturning a culture of dependency and philanthropy. There will be teething problems as we bed it down. However, I have been extremely pleased to be part of this transformative exercise. I have seen how people have grown, even during the two years in which I have had the privilege of chairing the advisory group. I am looking forward to seeing the success of the trailblazers and their eventual rollout across the country.

Baroness Thomas of Winchester: My Lords, as my noble friend said, it is just over a year ago that the band of Peers who speak on DWP matters welcomed the amendments to the Welfare Reform Bill, now Act, of 2009 which have triggered these regulations for pilots. I, too, can give them a hearty welcome.

I said a year ago that the amendments, now regulations, would herald a real shift in power from the state to disabled people, ensuring that they are in the driving seat when it comes to the support they need. I seek a few clarifications and have a few questions.

The amendments, which inserted a new clause, included a power for the Secretary of State to issue directions under existing community care legislation to deliver alignment under existing enactments. The then Minister, the noble Lord, Lord McKenzie of Luton, to whom I also pay warm tribute, said:

"Alignment means delivering the effect of the right to control to individuals in receipt of adult community care services".-[Official Report, 27/10/09; col. 1114.]

My noble friend Lord Freud responded that it made far more sense to base the right-to-control approach on community care services, which are likely to be required on a sustained and long-term basis, than on the more transitory requirements surrounding support for disabled people to secure employment.

I should be grateful for clarification on that point. I think it means that adult community care is not included in these regulations because it comes under other legislation on direct payments, but that under these regulations authorities are enabled to share information about community care. Is this correct? Presumably this means that assessments will be shared so that disabled people do not have to undergo multiple assessments.

We all know how stretched local authorities' financial resources will be. Will any support be provided to authorities to enable them to develop and implement a single assessment system? Will there be any practical support for organisations that provide information, advice, peer support and advocacy? There is an obligation for authorities to give to the disabled person information about organisations that provide advice and assistance, but there is no duty to sustain those organisations, nor is there a right to advocacy. Perhaps my noble friend can say what support there will be for the pilots.

Having read the document helpfully provided by the Office for Disability Issues, Making Choice and Control a Reality for Disabled People, I end by asking

8 Nov 2010 : Column GC15

my noble friend one or two questions arising from that document. On page 20, I see that the Office for Disability Issues is working with the Department of Health to consider allowing, within the trailblazers only, third parties to carry out non-complex assessment reviews. Are we talking about people other than healthcare professionals? I was not sure. If we are, there is already a certain amount of controversy about those who carry out the work capability assessment, and it is important to get all these assessments right.

Another small point is the rule that a disabled person has to be informed in writing of various things. We are told that this means,

If that is what the regulation means, why does it not say so?

Finally, have we got anywhere with the idea that the excellent access to work provisions might be guaranteed to a disabled person before the offer of a job, so that a potential employer would be more encouraged to offer that person employment? I hope that my noble friend can answer those questions-perhaps in writing, if not today. However, in general, I welcome the regulations most warmly.

Lord McKenzie of Luton: My Lords, I thank the noble Lord, Lord Freud, for his full explanation of these regulations and for his kind words. We certainly welcome the introduction of the right-to-control trailblazers, which, as all noble Lords who have spoken identified, flow from the Welfare Reform Act 2009. The Minister referred to them as groundbreaking; the noble Baroness, Lady Campbell, referred to them as transformational and overturning a culture of dependency. I very much agree with that. The noble Baroness was the driving force behind the development of the right to control. She described the legislative process as one of co-production. It would seem that this approach has very much continued in the development of the regulations before us. The right to control is predicated on the principle that disabled people are the experts in their own lives: and that their being passive recipients of whatever support is deemed appropriate, and how that support is delivered, is no longer acceptable. I agree.

I have one or two specific questions that perhaps the Minister can help me with. The Independent Living Fund is not one of the qualifying services, although it is one of the six funded services that are to be included in the right-to-control trailblazer areas. Notwithstanding that further applications are to be considered during the current financial year, my understanding is that the right to control can still apply to existing recipients. I should be grateful if the Minister could confirm that. Can he also explain the position for future years? What are the planned allocations over the CSR period? If he cannot tell us today, he might let us know when that information will be available.

Work Choice is one of the qualifying services. According to the DWP website, contracts have now been awarded for the delivery of that programme. Can the Minister say a little about how those contractual arrangements sit alongside the right to control? For example, will the duty of the responsible authority to

8 Nov 2010 : Column GC16

provide information to the beneficiary under Regulation 7 remain with the Secretary of State or, by agreement, be passed to the third-party provider? In second arrangements with providers, what estimate has been made of the likely numbers of people who will opt for arrangements other than those available under these contracts? More generally, can the Minister say whether any of the six funding streams are likely to be inculcated in whole or in part into the universal credit when introduced, or if any of the relevant services within the meaning of Section 39 of the Welfare Reform Act would be so included? I understand that we may get more detailed views on that later in the week.

It is understood that the Work Choice programme, when introduced, will focus very much on an individualised approach to supporting people towards and into work. That is something that we should support. Can the Minister say something about the relationship between that programme and the right to control? As the noble Baroness, Lady Thomas, said, concern was expressed during our deliberations on the Welfare Reform Bill that expressly excluding adult community care services from the legislation would substantially diminish benefits from the right-to-control approach. The reason for the exclusion was that similar provisions exist under other legislation. We are told that the Department of Health will issue directions to local authorities to ensure that people assessed for adult community care services living in the pilot areas will have the equivalent facilities of the right to control. Given that the regulations have now been laid and that the pilots are due to commence shortly, have those directions now been finalised?

Supporting People is a vital, non-statutory programme that helps about a million of our most vulnerable citizens each year. It is a sign of the times that it is considered a reasonably protected budget, although it suffers a 12 per cent real-time reduction over the CSR period. It is a qualifying service for the purposes of these regulations, to the extent that it helps disabled people to live independently. Funding from the centre is no longer ring-fenced and there is great concern that local authorities, under extreme financial pressure because of budget cuts, will shift resources to other programmes. To the extent to which that happens, vulnerable people who are eligible to benefit from these and other regulations will suffer. Will the Minister say how this issue is to be monitored?

It is comforting that the DFG regime has been brought within the right-to-control pilots. Again, the budget will be under extreme pressure because local authorities typically top up their central capital allocation. Obviously, their scope for doing so is diminished. Will the Minister deal with one point? It is focused on the changes to buildings, but it should cover the provision of equipment as well. Do the processes envisaged here facilitate the recycling of equipment? I recall instances in the past such as when I was on a local authority and someone had a stairlift fitted. Sadly, within two weeks, they died, but it was pretty much impossible to get the stairlift taken out of that property and installed in another property with an equivalent need. I am not sure that I have my mind around all the processes envisaged here, so I should like to check whether that is facilitated, or not precluded. Obviously, that would damage the interests of disabled people.



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Finally, could the Minister remind us of the basis on which the pilot areas were chosen?

In conclusion, these regulations are a hugely important step forward and a tribute to a lot of work that has been done by many people, particularly the noble Baroness, Lady Campbell. They give us a chance to test the proposals in practice and open up opportunities for disabled people to transform the quality of their lives. We give these regulations our full support.

Lord Freud: My Lords, I thank everyone who has spoken in this debate for their unanimous supportive approach. We are looking at a watershed moment-despite the level of consensus in this Committee, or maybe even because of it-in the way that right to control will enable disabled adults to have a real say in how services are provided and choose how to purchase those services. As the noble Baroness, Lady Campbell-who will, I think, be watching-said, these pilots need to be implemented well. While I could not possibly comment on her claim that she is a control freak, I know she raised the issue that some people who may not be quite as enthusiastic about taking total control will still be part of the pilot. Full support for them will be built into the pilot and will be a vital aspect of it.

I will now deal in no particular order with the questions that were raised. The noble Baroness, Lady Thomas, asked about the number of assessments required. We are working with all the local authorities involved to support them in undertaking just a single assessment, and have a field support team working with the different local authorities to share the approach. The noble Baroness asked why the regulations do not refer to accessible formats for the provision of information. These do not need to be specified in the regulations because there is a general duty under the Equality Act. The noble Baroness asked how community care will work. It is aligned with right to control. These regulations work alongside the legislative framework for community care. Indeed, the data-sharing regulations extend to community care.

The noble Baroness asked about the support provided to user-led organisations during the pilots. Trailblazers work with the local organisations that supply the support and advocacy. The representatives are members of local project boards, and the Government will provide support to trailblazers, which can include support for user-led organisations. The noble Baroness raised the issue of general support. The concept of right to control involves assembling the money that is already there and making it accessible in a right-to-control way. For the purpose of the pilots, we are putting resources in because there is clearly extra cost for the communities. From memory, the figure that we are adding to that package is £7.5 million, which will be a mixture of cash and practical support.

4.45 pm

On the question of whether third-party organisations will be able to view personal data, these regulations do not extend to the sharing of data with the partner organisations, because they are not defined as relevant authorities. In cases where it is necessary to do so, the

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disabled person or their representative will need to give their consent to the data being shared.

I think that I can now move on to the series of penetrating questions asked by the noble Lord, Lord McKenzie. His first ones concerned whether people receiving adult community care would have the full right to control. The answer is an unequivocal yes.

I am afraid that I shall have to clarify in writing the noble Lord's question about adaptations. I was not aware of that particular wrinkle about not being able to recycle, and it would be nice to lose that anomaly if possible.

With regard to the relationship with Work Choice, customers eligible for that programme in a trailblazer area will automatically be eligible for the right to control. The Independent Living Fund will remain one of the funding streams for the right to control, and clearly we will work with the trailblazers and the Independent Living Fund to look at the impact for the future. I do not think that I am in a position today to be more explicit than we have been about the rest of the spending review in that regard. We are looking at the matter in the context of the spending review, and clearly we are working with the trustees of the fund, disabled people's organisations and other key stakeholders, including local authorities. I can commit to a full consultation with disabled people's organisations, the key stakeholders and local authorities before any decisions are made.

I think that the only issue that I have not dealt with is the basis on which the pilot areas are chosen. I believe that the noble Lord who asked that question knows the exact answer, which I have to admit I do not. I shall write to him on what he thought was the best way of choosing the areas, although I suspect that that is not entirely necessary. In the nick of time, perhaps I can modify that answer, thanks to the extraordinary writing skills of the team behind me. We issued a prospectus setting out the aims of the trailblazers and invited bids. The selection panel considered the bids, and choices were made ensuring that the right to control could be tested in rural, urban, unitary and metropolitan authorities, so there was a good mix. As the noble Lord will know, we lost one of the pilot areas but we are pursuing it with the other seven.

With those questions all dealt with, I conclude by saying that these regulations are a necessary step in enabling the legislation to deliver the right to control and therefore in empowering disabled adults to have greater choice and control over their own lives. I commend the regulations to the Committee.

Motion agreed.

Asylum (First List of Safe Countries) (Amendment) Order 2010

Copy of the SI
Copy of the Report

Considered in Grand Committee

4.51 pm

Moved By Earl Attlee



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Earl Attlee: My Lords, the order adds Switzerland to the first list of safe third countries set out in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This provision is concerned with situations in which an asylum seeker may be removed to a safe third country-that is, one of which he or she is not a national or citizen-without substantive consideration of the asylum claim. Countries in the first list of safe countries are presumed to be places from which an asylum seeker will not be returned in breach of the refugee convention or the European Convention on Human Rights.

Provided that the Secretary of State is able to certify, therefore, that the applicant is not a national or citizen of the state listed, the applicant may be removed to it and no right of appeal lies against the decision on the grounds of presumed or deemed safety. In other words, the applicant cannot bring an appeal arguing that the country in question is not safe.

Applicants may resist their removal on other human rights grounds in the usual way, although provision is made for such claims to be certified as clearly unfounded unless we are satisfied that they are not. If the claim is so certified, any appeal may be made only outside the United Kingdom. The Part 2 list currently includes all member states of the European Union, Iceland and Norway, all of which are bound by the arrangements for determining responsibility for examining an asylum claim set down in EC Regulation No. 343/2003, also known as the Dublin II Regulation. This regulation determines which member state is responsible for dealing with an asylum claim made within the EU or in another participating country. Dublin II combats the problem of asylum shopping in Europe by making one participating state-most often, though not always, the first one that the asylum seeker entered or the one in which he or she first claimed asylum-responsible for an asylum applicant and allowing him or her to be returned there if he or she tries to make a claim somewhere else. Since 2004, the Dublin regulation has allowed us to remove a net total of more than 7,500 people to other participating states.

Switzerland has signed an agreement with the EU allowing it to join the Dublin system and has been taking part in it since December 2008. The UK Border Agency has considered research from a number of sources, including UNHCR reports and the US State Department, and has conducted its own country research. We are satisfied that Switzerland has adequate procedures in place to ensure that individuals will neither be exposed to persecution in Switzerland nor be returned to their country of origin in breach of the refugee convention. We therefore believe that it is appropriate to make this order, which will allow us to operate the Dublin II Regulation with Switzerland as effectively as possible. I beg to move.

Lord Rosser: My Lords, as the Minister said, the order adds Switzerland to the list of safe third countries to which an asylum seeker can be removed from the UK without substantive consideration of the merits of his or her asylum claim. One effect is that there is no scope to contest removal to the third country on refugee convention grounds either before or after removal from the UK.



8 Nov 2010 : Column GC20

The Secretary of State has said that she is satisfied that removing asylum seekers to Switzerland will not be in breach of the European Convention on Human Rights and that any asylum seeker returned to Switzerland will be afforded the rights and benefits accorded to all asylum seekers under its domestic law. Paragraph 8.1 of the Explanatory Memorandum refers to:

"Extensive research into the treatment of asylum seekers in Switzerland",

having been,

Can the Minister say a little more about what that objective material was? From what is said in the Explanatory Memorandum, one takes it that it is independent material, but it would be helpful if the Minister could say a little more on that score.

The list of safe third countries includes, as the Minister said, all member states of the European Union and states in the European economic area. The Explanatory Memorandum also states that since December 2008 eight asylum seekers have been removed to Switzerland. Can the Minister tell us in general terms something about the eight cases? Did the people involved seek to contest the decision to remove them? Have there been any cases of decisions to remove to Switzerland being successfully contested and, if so, on what grounds did they succeed? On what general grounds or basis was Switzerland considered in these cases to be the appropriate country in respect of those eight asylum seekers? Was it, as the Minister said in his introductory comments, that Switzerland was the first country entered? With the introduction of this order, is there expected to be an increase in the number of asylum seekers being removed to Switzerland if the process is simplified?

Paragraphs 10.2 and 12.1 of the Explanatory Memorandum state that adding Switzerland to the safe third country list and its associated procedures will reduce the scope for errors. What kinds of errors are referred to in these two paragraphs?

This does not appear to be a contentious order but, finally, there is a reference in paragraph 12.2 of the Explanatory Memorandum to the instrument being,

When that internal review has been undertaken, will the results be made public?

5 pm

Baroness Hamwee: My Lords, this is not a contentious order, but one phrase that the Minister used in his introduction caught my attention. He referred to the net total of those subjected to these orders since 2004. Is that the net total of those who have come into the UK? Net is not a term that I would have expected to hear in the context.

Earl Attlee: My Lords, I am grateful to all noble Lords who have contributed to this short debate on the order. The noble Lord, Lord Rosser, asked what constituted objective material: the answer is the US State Department reports that I mentioned and the

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experience of that country. Switzerland is clearly going to be a safe country as it is another European country, although obviously not part of the European Union, and so I do not see any difficulties. However, we had to go through a rigorous objective assessment of that state.

The noble Lord referred to the number of asylum seekers. Clearly, there are very few asylum seekers being sent back to Switzerland because it is not an obvious country for them to first arrive at. I was asked whether there would be an increase in removals to Switzerland. The answer is, no, the numbers are very low, but some asylum seekers will be subjected to this new procedure. The noble Lord needs to understand that procedures are already in place to allow removals but the Secretary of State must give each case a more difficult and protracted consideration. Once this order is approved, it will be easier for the Secretary of State to require removal.

The noble Lord touched on the scope for errors. It is sensible to have a universal procedure for all asylum seekers. Having different procedures for one very small proportion of asylum seekers seems unwise, and therefore it is better to approve this order and reduce the scope for errors. However, that does not mean that lots of errors are occurring.

The noble Baroness asked about the net total. I have not had any inspiration on that yet. The noble Lord, Lord Rosser, asked how many removals had been challenged. I shall have to write to him on that one, but there have been 12 removals since the Explanatory Memorandum was published.

Baroness Hamwee: Will the Minister write with the answer to my question?

Earl Attlee: My Lords, I shall write on the questions that I have not answered.

Lord Rosser: One question to which the Minister has not responded-and I can hardly imagine that it is a difficult one-is whether or not the results of the internal review will be made public.

Earl Attlee: My Lords, I am afraid that I shall have to write on that one as well.

Motion agreed.

Immigration (Biometric Registration) (Amendment) Regulations 2010

Copy of the SI
Copy of the Report

Considered in Grand Committee

5.03 pm

Moved By Earl Attlee



8 Nov 2010 : Column GC22

Earl Attlee: My Lords, on 25 November 2008 the UK Border Agency issued the first biometric residence permits, through regulations made under the UK Borders Act 2007, to applicants granted further leave under student, marriage and partnership categories. In 2009, the regulations were amended to include students applying under tier 4 of the points-based system and other, smaller categories. January 2010 saw the rollout to skilled workers extending their stay under tier 2, and now I beg to move that the Immigration (Biometric Registration) (Amendment) Regulations 2010 be considered to incorporate the two remaining active tiers of the points-based system for migration.

In addition to those in migration categories who are already required to apply for a biometric residence permit, the regulations will introduce the biometric registration requirement for migrant workers applying to extend their stay in the UK for more than six months under tiers 1 and 5 of the points-based system, and for their dependants. Tier 1 covers highly skilled workers, investors, entrepreneurs and post-study work. Tier 5 is for certain types of sponsored temporary workers whose entry helps satisfy cultural, charitable, religious or international objectives. These permits enable the UK to comply with European regulation EC 1030/2002, as amended by EC 380/2008, which prescribes uniform residence permits containing fingerprints and photograph to be issued to third-country nationals staying in member states for more than six months.

Key to any immigration control system is the ability to establish that a migrant granted leave to enter or remain in the UK is the rightful holder of immigration status set out in the document that evidences that entitlement. The integrity of immigration control is threatened by those who seek to make multiple fraudulent immigration applications, to work illegally and to access public funds and services to which they are not entitled. By enrolling a migrant's unique biometric information, we can establish a reliable link between the holder and the permit. We can link the biographical details they give us to their unique biometric identifiers and check a person against our existing records before deciding whether to grant their application to be in the UK.

Biometric residence permits make it easier and more reliable for the UK Border Agency, employers and public service providers to confirm a person's immigration status and eligibility to entitlements in the UK. The infrastructure for these permits is in place and permits have been well received by legitimate migrants, employers and service providers as a secure and reliable way of confirming identity, immigration status, the right to work and the entitlement to access services. With more than 300,000 biometric residence permits now issued, the permit is now widely recognised and trusted as a secure immigration document. Guidance on checking the cards is available on the UK Border Agency's website and a telephone verification service is available for employers.

To date, the rollout has largely run smoothly, with the majority of successful applicants receiving their permits within a few days of being notified that their application for further leave was granted. Enrolment

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provision has been expanded to meet customer need, with 11 Home Office biometric enrolment centres and 17 Crown Post Offices offering enrolment.

I will briefly set out the categories to which regulations already apply. Biometric residence permits are currently issued to those granted further leave to stay in the UK for more than six months as skilled workers applying under tier 2 of the points-based system, which is for people coming to fill shortage occupations or a gap in the labour market that cannot be filled by a settled worker and includes elite sportspersons and coaches, ministers of religion, missionaries or members of religious orders.

Tier 4 of the points-based system, which is for students is also already covered, along with a number of other categories of applicant extending for more than six months: spouses and partners of persons present and settled in the United Kingdom, representatives of overseas businesses, academic visitors, visitors for private medical treatment, domestic workers in private households, those applying on the grounds of United Kingdom ancestry and retired persons of independent means. Those transferring their conditions of limited leave from an old passport are also covered. Where the Immigration Rules allow dependants to join the applicant, the biometric regulations also apply to them, whenever they make such an application.

The 2010 regulations build from the previous biometric registration regulations and take us further towards complying fully with our obligations under EU regulations. To complete rollout to all tiers of the points-based system, we now seek to incorporate tiers 1 and 5. Tier 1 is designed to attract to the UK the brightest and best migrants from around the world who have the most to contribute to our economy and the Committee will be aware that the Immigration Minister recently confirmed:

"Those coming into the UK under the highly skilled migrant route should only be able to do highly skilled jobs-it should not be used as a means to enter the low-skilled jobs market".

There are four sub-categories: general, for the most highly skilled workers, who are granted free access to the UK labour market so that they can look for work or self-employment opportunities; entrepreneurs, for those investing in the UK by setting up or taking over and being actively involved in the running of one or more businesses; investors, for high-net-worth individuals making a substantial financial investment-at least £1 million-to the UK; and post-study work, for the most able international graduates who have studied here, to enhance the UK's overall offer to international students and providing a bridge to highly skilled or skilled work.

Tier 5 is for youth mobility and temporary workers who are coming to work in the UK for short periods for primarily non-economic objectives. There are two sub-categories of tier 5: temporary workers, for certain types of temporary worker whose entry helps to satisfy cultural, charitable, religious or international objectives, and the youth mobility scheme. Those coming to the UK under this sub-category are not able to extend their stay in the UK under the Immigration Rules so will not be affected by these regulations.



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I am happy to try to answer specific questions about these regulations if noble Lords wish to raise them. I commend these regulations to the Committee. I believe they are proving to be a useful tool in tackling illegal immigration and illegal working. Employers have told us they welcome the documents as a secure and reliable means of confirming the right to work. When we intend introducing further categories of foreign nationals who are required to apply for a biometric residence permit, we will return to Parliament and seek further approval. I hope that I have explained the purpose of the regulations, and I beg to move.

5.15 pm

Lord Rosser: My Lords, I thank the Minister for his explanation of these regulations which, as I understand it, continue the incremental rollout of biometric immigration documents to include groups of foreign nationals who are subject to immigration control and who have limited leave to stay in the United Kingdom. I understand that the biometric immigration document issued under the regulations is a card with a chip containing biometric data; namely, fingerprints and a digital facial image.

As the Minister said, these are the fifth set of regulations to be made under the biometric registration provisions of the 2007 Act and are intended to enable us to move closer towards complying with the EU requirement for member states to confirm leave to stay through the issue of a residence permit in the form of a card from May 2011, and with a biometric card from May 2012. Do these regulations mean that the UK will have fully complied with its legal obligations under the EU legislation by May 2012, or am I to infer from a comment the Minister made towards the end of his speech that still further measures need to be taken to enable us to fully comply?

The Minister said that under these regulations individuals applying for further leave to stay in the UK for more than six months under the immigration rules in tiers 1 and 5 of the points-based system for migration will now have to apply for a biometric immigration document, as will the dependants of such applicants. The changes apply only to foreign nationals subject to immigration control. Already covered by the scheme are those in tier 2 of the points-based system-who, as I understand it, include intra-company transfers-and tier 4, which covers students. Paragraph 7.4 of the Explanatory Memorandum states:

I think the Minister said-I may well have misunderstood him-that there were 3,500 such documents now in circulation. Can he clarify whether that is the case? If it is not, what is the figure, and by how many will the number increase as a result of the order coming into force? In the light of the statement in the impact assessment that tiers 1 and 5 constitute approximately 16 per cent of the total projected numbers of biometric resident permit applicants, will the 3,500 be increased by roughly one-sixth?

To what extent are the numbers of people extending their stay in the United Kingdom under the terms of these regulations affected by the proposed cap on the

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numbers coming to this country each year? Will the provisions of these regulations or the earlier regulations covering tier 2-which I thought covered intra-company transfers, among other things-made under the biometric registration provisions of the 2007 Act apply to those coming to this country under intra-company moves, who, it appears, may now not come within the constraints of any intended cap on numbers coming to Great Britain.

Paragraph 8.1 of the Explanatory Memorandum states that there has been no formal consultation, but that the rollout strategy and policy have been discussed with internal and external stakeholders. Can the Minister indicate exactly who were the external stakeholders with whom discussions have taken place, if there were any in addition to those referred to in paragraph 9.1 of the Explanatory Memorandum? It may be that paragraph 9.1 covers all external stakeholders.

The impact assessment refers also to the social costs of £8.1 million which relate to the costs of travelling to enrol biometrics. Can the Minister say how the figure is calculated and broken down, at least in general terms? Likewise, the impact assessment refers to a reduction in benefits fraud and states that this could total £0.4 million over 10 years. Once again in general terms, how is that figure calculated? How does one come to the conclusion that that would be the figure after 10 years?

The Immigration Law Practitioners' Association expressed concerns that processing times will increase when the volume of applications increase because applicants from tiers 1 and 5 will also need to enrol biometrics. The Explanatory Memorandum appears to reject these concerns. On what basis, and against what criteria, have the Government come to the conclusion that they have increased the capacity of enrolment facilities and options sufficiently, as is inferred on page 21 out of 56 of the Explanatory Memorandum documents?

Likewise, the ILPA expressed a view that the requirement for a biometric residence permit will adversely affect frequent business travellers because it adds an extra stage to the application process. The response was that, as part of the review of the front-office biometric enrolment service, the Government will be looking to further improve the service offered to applicants, including increasing the availability of enrolment offices and faster processing times. Since, as I understand it, the policy is to be implemented next month, what specific further improvements do the Government intend to make to address this point made by the immigration law practitioner service, and its further point that the range of locations at which biometric data can be enrolled, to which the Minister referred in his speech, is limited?

I appreciate that there are a number of questions there. I do not know the extent to which the Minister can respond today, but I would be grateful if he could write to me on those questions that he is unable to respond to.

Baroness Hamwee: I, too, am grateful for the explanation. I have given the Minister notice of some questions which, in fact, cover very much the same ground as those asked by the noble Lord, Lord Rosser.



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On the question of compliance with EU requirements; to put it another way round-what more is outstanding on that score for the UK fully to comply? My other questions are practical in regard to enrolment and access by employers to the information. I am unclear how biometric information, as distinct from simply the production of the card, makes it easier for employers to check eligibility to work in the UK-something which the impact assessment tells us will be the case. Can employers check the position without having access to a reader? The Minister mentioned a telephone verification service. I do not know whether I am confusing the different bits of the mechanics of this, but I am unclear what that service will provide.

The Minister also talked about 11 centres for enrolment, plus 17 Crown post offices. This seems to have been an issue in the consultation. What further rollout will there be and what geographical coverage has already been obtained by the centres that are in place? They seem to be quite small in number.

Earl Attlee: I am grateful for noble Lords' questions about this. The noble Lord, Lord Rosser, asked about the rollout and whether the UK would be fully compliant by 2012 as per the regulations. Yes, it will. Companies are becoming familiar with them, because there are 300,000 in circulation. Certain types of companies tend to use more migrant labour and are therefore more familiar. He asked how many more would be issued. We think about 80,000 per annum. He also asked about consultation. In the Explanatory Memorandum there is a very long list of people consulted, but I shall not weary your Lordships by reading it out.

The noble Lord touched on enrolment capacity and limitations. That is one reason why we did not introduce the BRPs in one go. It is a rollout programme, taking in new tiers.

I was asked how an employer can check a BRP without a reader. Guidance clearly sets out that the security features of BRPs are available to download from the UK Border Agency website. There is also a BRP verification telephone service, which employers can call to check whether a card has been cancelled-for example, because it has been reported lost or stolen.

I was asked where applicants can register their biometric identifiers. They can do so at one of 11 Home Office biometric enrolment offices around the UK, or one of 17 Crown post offices participating in a pilot. At present there are 28 venues located at UK Border Agency inquiry offices at Croydon, Solihull, Sheffield, Liverpool, Glasgow, Belfast and Cardiff. There are also biometric enrolment centres at passport service offices enrolling foreign nationals on behalf of the UK Border Agency at London Elephant and Castle, Birmingham, Derby and Brighton. The post offices are at Aberdeen, Beckenham, Beeston, Bracknell, Cambridge, Durham, Kingstanding, Battersea, Camden, Earls Court, Old Street, Middleton, Oxford, Redditch, Romsey, South Shields and Stamford. So there are plenty of locations.

We have also rolled out a mobile biometric enrolment service for those physically unable to attend an enrolment centre for medical or other reasons. This service is also available as an exclusive super-premium service whereby

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UK Border Agency officers will visit an applicant to enrol their biometric information-fingerprints, photograph and signature-and decide and conclude their application. This costs £15,000. The super-premium service is not currently available to customers applying for an extension of leave under a category that does not require a BRP, or applying for permanent residency or citizenships.

I was asked what we were doing to address the problems that applicants have experienced when applying for BRPs. Most have not experienced problems. The UK Border Agency takes any problems or issues very seriously, and is determined to learn lessons and continuously improve the service provided to its customers. It investigates any complaints received and aims to resolve them as quickly as possible and take steps to put things right if and when they have gone wrong. The vast majority of people find applying for a permit trouble-free. We have been collecting customer feedback and the vast majority of responses have been very positive.

I was asked why applying for a BRP delays applications. It does not do so, but the biometric enrolment must take place before the case is concluded, so that we can check the applicant against the existing databases and link their biographical details provided to the unique biometric identifiers.

The noble Baroness, Lady Hamwee, asked several questions. First, she asked what more was required for the UK fully to comply with the EU requirements. EU legislation requires BRPs to be issued to all non-EEA migrants, granting permission to stay in the UK for more than six months, by May 2012. We are on target to do that. She asked how biometric information, as distinct from the card itself, makes it easier for employers to check eligibility in the UK and whether that did not require employers to use a reader to check the information. Biometric information makes the link between the document and the holder more reliable, which in turn means that employers can have more confidence in the BRP than other less sophisticated documents. Currently, an employer can perform a visual check of the biometric facial image incorporated into the face of the card against the person present as well as checking the BRP's security features and using the telephone verification service. We are currently developing plans for an automated online checking service. In time, readers capable of unlocking the data on the chip will be more readily available and will enable employers to check the biometric information of the person presenting the document against the facial image and fingerprints stored on the chip. They will also have the ability to authenticate the document electronically.

5.30 pm

Finally, the noble Baroness asked how accessible readers are. This was an issue in the consultation. Biometric residence permits are an important step in the fight against illegal immigration and abuse of the immigration system. BRPs are more secure than other paper-based documents and allow us to check and store an applicant's unique biometric identifiers before granting them permission to be in the UK. In addition

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to this capability, we can biometrically verify the identity of visa nationals, holders of entry clearances and holders of biometric residence permits at 31 major ports. Entrants at these ports, who have these documents, provide their fingerprints to be checked against the records on the UKBA fingerprint database.

A small number of specialist readers, capable of reading the electronic chip on the permit, are deployed at ports and will become more readily available over time as we ramp up the issuing of permits. Investment in card-reading capability will only occur when there are sufficient documents available to justify the investment in such technology. In the mean time, it makes sense to use other means of checking the document and holder, while we assess the need for chip-reading equipment against the volume of documents in circulation and other financial priorities.

I thank noble Lords for an interesting debate on our proposals to expand the roll-out of biometric residence permits, and welcome the Committee's views. Where I have not fully answered questions, I will of course write. The issues that have been raised are pertinent to the immigration regulations and I have replied.

In conclusion, recording biometric data and biographical information is important because it enables the UK Border Agency to check against existing records to make sure that the person who applies is not known to us or the police by another identity; and to establish a reliable link between the permit and the holder. Biometric residence permits provide details about the holder's right to be in the UK in a secure format that meets very high technical standards to safeguard against counterfeiting and falsification. A standard format of permit across Europe is of clear benefit to member states, and enables us to comply with the EU regulations and to ensure that we are not a weak link in Europe for immigration abuse.

Biometric residence permits contain features that make it easier for employers and public bodies to check the status of migrants. The permits make it straightforward for employers to identify an overseas national's right to work in the UK and easier for foreign workers to demonstrate that they are here legally and allowed to take employment or access other entitlements in the UK. With more than 300,000 residence permits now issued since November 2008, employers and others required to check the status of migrants are familiar with them. We have engaged with business, which has told us that these permits make conducting right-to-work checks easier. They would not welcome another change in immigration documentation since this would require them to put new training and procedures in place.

The categories selected for this rollout will enable us to continue it to more migrants with the right to work in the UK under the PBS, and to comply further with obligations under EU legislation. We will return to Parliament to seek further approval as we roll out to other categories of foreign nationals required to apply for biometric residence permits. I commend these regulations to the Committee and beg to move.

Motion agreed.

Committee adjourned at 5.34 pm.


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